Previously Asked Questions
Maliki Fiqh Principles:

> Is there a genuine ikhtilaf (disagreement) in the Maliki
> School - i.e. between the old and the new, the East and
> the West (meaning:  between the 'Maghrib' and the
> 'Egyptian' Malikis) , or just a general ikhtilaf over the
> ages? What do present-day Maliki scholars say about this issue?
> I would greatly appreciate your clarifying and
> scholarly comments.

Ikhtilaf on major issues in the Maliki school has been
settled for about 900 hundred years now.

The way the Maliki scholars settled the issues is by dividing
the opinions into "popular" and "minority" opinions.

Any school of knowledge will inherently have "popular" opinions
and minority opinions.  Only the ignorant will deny this.

[The following is our standard explanation of this subject.]:

Although the Guiding Helper contains mostly popular opinions,
it has been our view (and the view our teachers) to accept minority
opinions as being valid.  However, when teaching people, we use
the following chart of precedence:

 a) First we look for a popular ruling the Maliki school
 (Most popular rulings are explicitly listed in Ibn Juzayy
 al-Kalbi's book al-Qawanin al-Fiqhiyyah along with competing
 opinions).
 b) Then we look for a minority opinion in the Maliki school
 when a popular opinion is not suitable for the questioner
 (based upon our understanding of his situation).
 c) Then we look for an opinion in one of the other three schools
 of Jurisprudence. This is resorted to if the above two will
 be difficult for the questioner. Please note here that the
 other schools of Jurisprudence are very vast. For example,
 in the Hanafi School, it is common that there are three
 different strong opinions for the exact same issue. Thus,
 one will probably not need to go any further beyond the Hanafi,
 Shafi`i, and Hanbali schools.

Appendix:
=======

Now, you may be wondering what a "popular" (mash-hur) opinion
in the Maliki school is.  Here is a brief explanation:

    a) Imam Malik himself wrote no detailed fiqh book except of
       course the Muwatta' as knowledge back then was conveyed
       verbally and not using written methods.
    b) Imam Malik had many students (some more qualified than
       others).  These students had differing levels of
       understanding of Imam Malik's statements.  Thus, they often
       expressed legal rulings that differed from each other.  However,
       the Maliki scholars, by consensus, chose `Abd al-Rahman
       ibn Qasim (the freed African slave who was a dedicated student
       of Imam Malik) as the most reliable of his students.
    c) `Abd al-Rahman's views about Imam Malik's fiqh were accurately
        (without a doubt) transcribed by his student Sahnun in the
        al-Mudawwanah al-Kubrah (a four volume work that contains
        verbal statements of Imam Malik and `Abd al-Rahman ibn Qasim's
        understanding of them).
    d) Now you are ready to understand that the first-level source for a
       popular opinion in the Maliki school is al-Mudawwanah al-Kubra.
    e) However, some statements in the Mudawwanah are not very clear
       as the high-level fiqh vocabulary of the Jurists had not
       developed by then.  For example, Imam Malik saying "It doesn't
       please me" doesn't really tell us whether an act is makruh
       or unlawful.
    f) Thus, the top Maliki scholar that has ever lived (in our opinion)
       went about the task of rectifying the loose-ends of the Mudawwanah
       900 years ago.  This man's name was Ibn Rushd (again please do
       not confuse him with the philosopher Averroes).  He wrote a detailed
       commentary on the points mentioned in the Mudawwanah which he
       called Muqaddimat Ibn Rushd.  He also wrote many other books
       such as his poetry book for children also called Muqqadimat that
       expressed his understanding of the most trusted opinions in the
       Maliki school.
    g) Now you are ready to understand that the second-level refined
       source for a popular opinion in the Maliki school is Ibn Rushd's
       writings.
    h) Now Ibn Rushd did not arbitrarily choose one of various plausible
       opinions and call it mash-hur.  Rather, he did extensive research
       on each point including conformity/disagreement with what previous
       big Maliki scholars had said and also what the primary texts state.
    e) Thus in conclusion, a popular opinion in the Maliki school is an
       opinion that Ibn Rushd has expressed in his writings (for old issues)
       or is an opinion that conforms to the guidelines set down by Rushd
       for reaching legal opinions (for new issues) in the Maliki school.

The above can serve as a general introduction to those that wish to
understand what a popular opinion is. Most popular opinions for the
Maliki school are explicitly stated along with competing
opinions in Ibn Juzayy al-Kalbi's al-Qawanin al-Fiqhiyyah.

One important note here are:

(1) Many people confuse Ibn Rushd al-Kabir with Ibn Rushd
al-Saghir (who also wrote many fiqh books like Bidayah
al-Mujtahid); so, be careful when you hear "Ibn Rushd says this;
so, this must be popular."  Also, please note that in
Ibn Rushd's al-Kabir's works he often notes multiple opinions
(only one of which is marked or known to be popular in the
school or none of which is marked or known to be popular
(the latter may occur in certain rare cases in other
than his Muqaddimat)).  Thus, also be careful when you hear
"Ibn Rushd al-Kabir said this; thus, this must be popular".
Rather, Ibn Rushd al-Kabir taught his students which one
was which and Ibn Juzayy al-Kalbi (a student of Ibn Rushd
al-Saghir (who incidentally was the biological grandson
of Ibn Rushd al-Kabir) finally wrote these down in an
excellently organized and brief form in his book
al-Qawanin al-Fiqhiyyah.

Thus, the way to learn what a popular opinion in the school
for the young scholar is to refer to Ibn Juzayy al-Kalbi's
book al-Qawanin al-Fiqhiyyah.  The way you know that an
opinion is popular is that it says "`ala l-mash-hur" or
it is the first ruling given and then it says "wa qeela"
which means "wa qeela fi l-madh-hab al-maaliki aydan
 ghayra l-awwal" (and also it is said in the Maliki school).

Also, when Ibn Juzayy al Kalbi says "ittifaqan", that means
"as agreed upon in the Maliki school".  Also when he says,
"ijma'an", it means "as agreed upon by all major scholars
of the din".  Thus, opinions listed with these two words
should also be treated as popular.

Please note here of all of the Maliki fiqh books that have
been written, the previous teachers of Qarawayeen (e.g,
a few hundred years ago) specifically chose Ibn Juzayy
al-Kalbi's book as the most concise and reliable compilation
of the common popular and minority opinions in the
Maliki school.  For this reason, it is a mandatory text to
this day for all young scholars.

However due to Ibn Juzayy al-Kalbi's extremely terse
style (and his omission of certain minor rulings, e.g.,
'sadl fi s-salah'), it is recommended that the young
scholar also have access to longer more detailed works
(such as the various shuruh of the Mukhtasar Khalil)
or also have access to a qualified Maliki scholar.

[Another important note here is that the word "popular"
(Mash-hur) is not synonymous with "dominant".  And the
word "minority" to label an opinion does not necessarily
inidicate that a majority of past and present scholars
did not hold this opinion.  Rather, it is very possible
that a popular opinion has been the view of less than a
majority of the past and present Maliki scholars.

Thus, the basic difference between a popular opinion and
a minority opinion has less to do with the number of
scholars who have held that opinion than it has to do with
the strength of the evidences for the opinion.  The strength
of the evidences for popular opinions is generally stronger
than those of minority opinions.]



>
> 1) How does something become "Mu'tamid" (i.e. relied upon) in a madhab?
>
> I know that there is no official committee or body that oversees the
> activities of the scholars of, and adherents to, a madhab, so how
> does something become "Mu'tamid"? Especially rulings on issues not
> dealt with in earlier times?
>
> 2) Are there ever differences of opinion regarding what is "Mu'tamid" and
> what is not? How are these differences of opinion resolved, if at all?
>
> 3) Does the process involved for the development/determination of
> "Mu'tamid" positions differ from one madhab to another? If so,
> what is the process for the Maliki School of thought?
>
> If you are not too busy, I would really appreciate it if you could supply
> the answers to the questions above, insha'allah.

The truth of the answer lies in the fact that all of the early teachers of
fiqh did not use specific technical vocabulary to express their teachings;
and one can even argue in many cases that many of these initial imams never
intended to form separate madhahib and these were the result of students
of different imams vying against each other.

But in formalizing their teacher's knowledge, these early students created
another big problem on their own.  And this problem was that they each
had different understandings of what actually the teacher was teaching.

Then once this is established that qualified students of the same teacher
had differing opinions on the same subject, then one understands that
in most cases the difference of opinion within the schools is not a
question of strength or weakness of opinions - as strength and weakness
are subjective concepts, which different people have differing ideas about.

For example what a Shafi`i considers a strong proof for raf` al-yadayn during
ruku` is considered an abrogated and weak proof for the same act by
a Hanafi.

Then once it is established that strength and weakness are arbitrary and
subjective concepts, then one (as a high-level scholar) must realize
that the methods used to choose one opinion - as the standard opinion
within the school has a level of arbitrariness within it.

Now each school claims that the opinions which it labels as "mu`tamad"
(here this is the passive participle and we must have a fatha on the `ayn
radical) are the ones in most conformity to the principles outlined by the
original teacher(s).

Now the exact method of how these mu`tamad positions were formed is
consistently arbitrary in each school - where we see one, two or at most three
*star* scholars choose the relied upon positions based upon extensive research
and their view of which opinion was most consistent with the imam's original
teachings.

For the Shafi`i school this could be considered the opinions formed by Imam
Abul Qasim al-Rafi`i and Imam al-Nawawi.

For the Hanafi School this could be considered to be the dhahiru r-riwayah
of Muhammad al-Shaybani.

For the Hanbali school, this could be considered the conclusions of Ibn Qudamah
al-Maqdasi, Abu l-Qasim al-Khiraqi, or others.

For the Maliki School, we have more than two divisions of opinions.  Ali
al-`Iraqi notes seven odd categories of opinions which were used and formed in
his Fatwa  and Qada' text on http://www.guidinghelper.com/otherTexts.html.  We
have  simplified this for the purpose of standardization and stated that
opinions can be divided into two categories:  (1) mash-hur and (2) non-mash-hur
(non-mash-hur includes the other six odd categories of opinions being used by
past Maliki scholars).

And to help people understand how exactly a mash-hur position is formed
for both old and *new* issues we have prepared footnote 196 of the
Notes of Sources whose material is contained in the first question on this
page:

   http://www.guidinghelper.com/qna/maliki.html

Now taking into account that more than two categories of opinions were
being used by authentic Maliki Scholars of the past, we (i.e. our teachers)
have stated that following and teaching non-mash-hur (a.k.a. minority)
positions is also valid.  And there should be no confusion created from this
since the definition of mash-hur we have outlined is time independent and
solidified beyond corruption.

Thus, there is no danger of the school being corrupted by people teaching
non-mash-hur positions - as we can always return to a solid base
(e.g., Ibn Juzayy al-Kalbi's book, al-Mudawwanah al-Kubraa, and the
Muqaddimaat of Ibn Rushd al-Kabir) to verify whether what they are
teaching has basis in the popular opinion or commonly known minority
opinion or not.  [As a side note, commonly known minority opinions are
also noted in these afore-mentioned three texts.]

As an end note here (which may not please many non-Shafi`is and non-Malikis)
is that it can be proven that the other madhahib other than the Maliki and
Shafi`i madh-hab never were able to form solidified and agreed upon
"popular" opinions.  Three references for this for the Hanbali and Hanafi
madh-habs are (1) al-Mughni of Ibn Qudamah for the Hanbali madh-hab and
(2) Maraqi l-Falah and Shuruh of Quduri for the Hanafi madh-hab.

This further exposes the ignorance of those who claim that only a single
position must and always has been followed.

Reference(s):
If you would like to view an answer on this issue from another perspective,
you can see:

    http://www.islam.tc/ask-imam/view.php?q=13545



[...]
You have to realize at this point that the Guiding Helper Explanatory Notes have been written
after studying such subjects from many different viewpoints from a variety of sources.  And the
text has been written so that people can learn such subjects without becoming confused about
such differences of opinion. And the opinions narrated are given for reasons and that these opinions
narrated (in close to ninety-five percent of the cases) conform to the popular opinions in the
Maliki School - the popular opinions when compared to many minority opinions are much easier
to learn and practice.

Thus, generally speaking, you will find that the popular opinion in the Maliki school is often
more lenient than the minority opinions found.  One can mistake this principle to be the
other way around since we have only narrated minority opinions which are *easier* than
the popular opinions and not those which are harder.  For advanced students, they may refer to our
footnotes in the Notes of Sources in which we clearly state where we deviate from the popular opinion
on the major issues discussed.


> So my question is this: If I believe that I am just finishing the
> second of two sajda in a Raka, should I presume this belief is
> correct unless I can verify that I definitely did NOT do two? Or
> do I have to assume that I did NOT do two unless I can recall
> precisely each interior and exterior detail of the two sajda? And
> how uncertain do I have to be to warrant the prostration of forgetfulness?

Make life easier for yourself by becoming sure of yourself all the
time and not be among the people who are plagued by doubts.

As for what does "doubt" mean: it means that you have no "most
probably" opinion.  It means that you are equivocal between two
possibilities.  As for small doubts (e.g., I'm 90% sure but am 10% unsure),
they do not count as the "shakk"/doubt that the fuqaha' (fiqh scholars) are
talking about. -and as such, small doubts should be totally ignored
and you should push these doubts away.

References:
    Footnote 489 of the Explanatory Notes and associated entries in
    the Notes of Sources.


> Could you please explain the position of Ijma' in the Maliki school? I have heard
> from Shafi'i sources that Ijma' is the consensus of all of the Mujtahid's of a
> particular time. How is it possible to know of all the Mujtahid's of a particular
> time? I'm not sure if there were mujtahid Imams in China, but prior to modern
> communication, it would seem difficult to get all the info.

As you note, it is impractical to say that Ijma' included each and every scholar.
There are detailed discussions of this elsewhere.  However if you are looking
for one work that gathers together the agreed upon Ijma` opinions in
our din, please refer to Ibn Qudamah al-Maqdasi's al-Mughni or Ibn Juzayy
al-Kalbi's al-Qawanin al-Fiqhiyyah.

Ijma` may be taken from the preponderance of the scholars at a particular
time (e.g., 95%).

We believe that the Malikis mostly use Imja` for referring to the Ijma` of the
people of Madinah.  Since this is easily definable as:  the consensus of the
scholars who lived or taught in Madinah in the first two to three centuries
of Islam (thus, the Companions, the tabi`in and the tabi` al-tabi`in are
included).

Imam Malik has said:  The consensus of all of the scholars of Madinah is
a [strong] argument [and proof].

[As a side note, after the third century of Islam up until our day, many
would-be scholars claim Ijma` on subjects on which Ijma` is probably not
provable.  They do this to re-enforce their opinion or the opinion of their
teachers.  Ibn Qudamah's book mentioned above is probably the best one
that sorts things out.]

References:
   [UF: volume 1: page 488: line(s) 6-7: {Imja`, Ijma` in the time of the Mujtahid Imams}]
   [UF: volume 1: page 505: line(s) 9-12: {Ijma`, Ijma` Ahl al-Madinah}]


> Are there preferred modes of acting (i.e. things which are permissable
> legally but are not necessarily thought well of? (one idea that comes
> to mind is that many Muslims look down on a man with more than one wife.)

Please do research on "tarkuhu awla" (translated:  leaving it
is better) in fiqh.  Some people refer to it as tark ul-Awla.
Many scholars in the Maliki school have written about it as
a sixth type of informal legal category.

In short, yes there are higher standards for educated and refined
people in our din.  This has been the case from the time of the
Prophet (May Allah bless him and give him peace) up until
our time.  For example, the Prophet expected less of rough Bedouins
and accepted abuse and bad manners from them.

The Guiding Helper was written with the base lowest common
denominator in mind so that it could benefit the greatest number
of people.  There are ethics and morals conveyed in our din which
go beyond the basic material mentioned in such fiqh works.


> I was recently listening to an audio lecture by Sheikh XXXX al-Maliki
> on Surah al-Fatihah. He said that latter day Maliki scholars felt that
> it was safer to recite the bismillah in fard prayers to be safe and
> avoid differing from the other three schools (two of which encourage the
> bismillah and one of which requires the bismillah) Do you have any
> knowledge of this matter?

The popular opinion in the Maliki school states that reciting bismillah
before the recitations is makruh in the fard salat and is mubah in mandub
salat.

Upon research, you will find scholars who hold minority
opinions on this subject that either always declare mubah or declare
mandub the recitation of the Bismillah.

References:
  [QF: volume 1: page(s) 56, line(s) 14-15: {book 2, chapter 10,
    issue 2, middle}]

As for being safe by joining between the schools, you will
hear many past scholars in all madh-habs that have encouraged
this practice.

However, the erudite know that tasking oneself to join between
the schools can only work up until the time one has become
extremely learned - at which point it becomes either too difficult
or impossible (due to inherent contradictions between the various
madh-habs) since one knows too many opinions for any one
issue.

We would recommend books such as Bidayah al-Mujtahid
wa Niyahah al-Muqtasid  (Averroes) and al-Qawanin al-Fiqhiyyah
(Ibn Juzayy al-Kalbi) for people interested in learning how many
valid opinions issued by authentic scholars in our din can exist
for any one subject.

[As a side note, having popular views in a madhab along
with acceptable minority views ensures that the teachers of the school
will not become dogmatic or "sect-minded" [e.g., like some unqualified
people who label any one who does not hold their particular views to be
part of a misguided sect.]



> How does the Maliki School deal with the issue of
> talfiq (mixing madh-habs)?  Can one take a legal
> ruling from another school

First of all you need to understand that talfiq is of four
types:

   a) Mixing madhabs for separate acts that have no
       direct link or dependency between them.  For example,
       fasting sawm like a Hanafi and praying salah like a Maliki.
   b) Mixing madhabs for separate acts that are dependent
        on one another.  For example, doing wudu' like a Hanafi
        (not wiping the entire head hair) and then praying like
        a Maliki.
    c) Mixing madhabs within the same act but in a way that the
         final act is acceptable in at least one school.  For example,
        crossing hands in the prayer like a Hanafi but praying like
        a Maliki otherwise (as leaving the hands dangling to the
         side is just a non-essential fadilah)).
     d) Mixing madhabs within the same act but in a way that the
         final act is *not* acceptable in any school.  For example,
         following the Maliki ruling of Zakat not being wajib on
        personal gold/silver jewelry but calculating one's Zakat owed like
        a Hanafi who allows one to take into account advance Zakat money given
        last year.  Thus, this person will gain from not paying Zakat
        on his personal gold/silver jewelry and also gain from
        his advance Zakat credits from last year (the latter of which is
        not allowed in the Maliki school).

The majority of the scholars (jumhur) are of the view that (a) is
permissible.  There is difference of opinion about whether (b) and
(c) above is permissible.  And there is almost total agreement that
(d) is not permissible.

We are narrating the opinion that (a), (b), and (c) are permissible
while (d) is not permissible.

However, it has been the experience of the masters of the Path
to Allah that such people who mix madhabs will rarely ever reach
the knowledge of Allah.  It is usually only those who follow
one school in all of their lives that become accomplished spirituals.

References:
   [UF: volume 2: page(s) 1142-1155: {mabhath 4, talfiq and using
    dispensations}]

  "And others have said - and they are a section of the Malikis
   like al-Qarafi... that it is permissible for the common man
   to search for and follow easier positions (rukhas) from other
   madh-habs.

   The reason for this is that there is no clear Divine text which
   prohibits this.  The person has a choice to follow what is easier
   for him...  This is also the way of the Prophet (May Allah bless
   him and give him peace) and his actions and verbal statements
   dictate the permissibility of this.  The Prophet was not given
   a choice between two matters, except he chose the easier one
   [Tirmidhi, Bukhari].  He used to love to make things easy for
   his ummah [Bukhari,  `A'ishah].  He said that he had been sent
   with a pure din which is tolerant (pardons easily) [Ahmad].  He
   also said that this din is easy and no one tries it make it
   hard except that it overcomes him [Bukhari, Nisa'i]...

   Imam al-Qarafi's also said:  It is permissible to follow
   easier positions from other madh-habs as long as the resultant
   act is not invalid in all of the schools chosen.  For example,
   following Imam Malik in wudu' not being broken by touching
   a woman without sensual desire and also following Imam
   Shafi`i in not needing to run one's hand over the washed part
   (dalk)...

   As for what other scholars have said (i.e. Ibn `Abd al-Barr)
   that it is not permissible for the common man to follow
   easier positions from other madh-habs and that this is agreed
   upon by all major scholars(ijma'), it cannot be verified that
   Ibn `Abd al-Barr actually said this and also it cannot be verified
   that this is actually an ijma` position since Imam Ahmad ibn
   Hanbal has two statements narrated from him on this matter...

   `Izz ibn `Abd al-Salam said, "It is in the common man's right
   that he be able to follow easier positions from the [four]
   madh-habs.  And whoever denies this is simply ignorant..."

   [UF: volume 2: page(s) 1154-1155: {Talfiq, last section in chapter}]



> Ustadh, I'm just a little confused on where the boundaries lie
> in the Maliki School between the various legal rulings.
> Can you explain?

To better understand this, first you have to
understand figure 4-1 in the Guiding Helper (listed
after footnote 270 of the Explanatory Notes).

The diagram is meant to illustrate two things:

   a) That each of the legal rulings (all except
      mubah) have differing levels within them.
   b) That the exact boundaries between two
      adjacent legal rulings is not clearly defined.
      This is why there is a vertical dark line
      between each of the legal rulings.  This
      dark line represents the "unknown" or "gray"
      area in which it is not exactly clear which of
      the two adjacent legal rulings the issue falls
      into.

These principles are taken from many places in the
primary texts and particularly the famous hadith
of al-Nu`man Ibn Bashir:

   The Prophet (May Allah bless him and give
   him peace) said, "The lawful is clear and
   the unlawful is clear but between these two
   things are unclear matters which many people
   do not know about.  Whoever stays away from
   the unclear matters has preserved his din
   and his honor.  And whoever falls into the
   unclear matters [gray area] has [almost or
   will have] fallen into the unlawful territory.
   This is like the shepherd who grazes his flock
   around a forbidden territory; it is likely
   that [some of his flock] will graze in the
   forbidden territory..."

   [Sahih Muslim, al-Musaqah, akhd al-halal wa
    tarku sh-shahawat, hadith #2996]


> I guess the issue at hand for me
> is to understand why certain Hadiths are narrated and under what
> circumstances. (I read the intro to GH, and recall the discussion on
> Daef hadiths.) I'm assuming I can get this from studying hadith
> methodology or Usul.

The truth about the Maliki madh-hab and hadith is that although
one can write a "notes of sources" with hadith proofs for the Maliki
positions (to deal with the exigencies of the time (such as the salafi
dogma)), the Maliki school is not truly based upon hadith.   Rather,
its primary basis is the preserved actions (`amal) of the early pious
Companions and Tabi`in who lived and practiced the din in Madinah.
Thus, rulings in the Maliki school are taken from the dominant
actions present in this early ideal society and not from isolated
hadith (as we have mentioned in the footnotes in the notes sources
when proving that leaving the hands to dangle in prayer is a valid view
in our din.).

Additionally, people who understand what `amal really is - understand that
`amal is just a special more accurate form of hadith.  As hadith are only
verbal whereas `amal is both verbal and physical.

The other schools (e.g., Dhahiri, Shafi`i, Hanbali, etc.) rely more
on hadith and they have come up with various ways to give preponderance
to one hadith over another.  Most of their methods concern authenticity
ratings and clearness of the body text (in its conformance to the general
principles taught by the Prophet (May Allah bless him and give him peace)).

The Hanafi school is derived less from hadith as it is from jurisprudential
analogy (qiyas) and other such legislative methods.  Nevertheless, the Hanafis
also have an extensive system of ranking and giving precedence to
hadith.  You could probably get your hands on one of their hadith
knowledge books since they are widespread - and even probably
translated.


> > I have a few questions related to your response:
> > the Maliki school is not truly based upon hadith. Rather,
> > its primary basis is the preserved actions of the early pious Companions
> > and Tabi`in who lived and practiced the din in Madinah.
> > Thus, rulings in the Maliki school are taken from the dominant
> >actions present in this early ideal society and not from isolated
> > hadith
>
> I'm not clear on what issues have thier proofs from the 'amal of Medinah, and
> which are from other sources (aside from Quran.) I'm assuming that not all the
> rulings are based on the 'amal.

We would say that Imam Malik's methodology calls for only looking
at hadith to verify and rank one of several available dominant a`maal
positions.

Additionally, he looked at hadith for issues that are not accurately
conveyed by a`maal or for which the a`maal are silent - and again he would rank
the hadith according to the clarity of the words and strength of the chain.

Reference:
  Ibn Rusdh's introduction to his Notes on the Mudawwanah in which
  he mentions Imam Malik as finding fault with scholars (e.g., Abu Hanifah)
  giving legal positions based solely upon hadith contradictory to the `amal
  of Madinah.

> Also, if the Mashur opinion is now based on
> Ibn Rushid's works, I had got the impression that there was a bit more of a
> Hadith orientation to his methods.

All Ibn Rushd was doing here was choosing one of several opinions
narrated by Imam Malik, using primary texts as *one* of his basises for
deciding.  Again he would use the clarity of the words and the
strength of the chain to rank hadith.  Ibn Rushd was not superceding
Imam Malik's opinions based upon his understanding of the strength
and correctness of a hadith.

[As a side note, one of the real reasons that there is so much ikhtilaf
in the fiqh branches is that it is not an easy task to rank hadith.
And the question you ask (i.e. which hadith should be used if multiple
are available?) returns to this point.  Two very qualified
scholars can rank the same hadith totally differently.  ]

> Also, there is a bit of confusion in the English speaking world regarding
> 'amal. Some seem to imply that it is the 'amal of all the people (or most) of
> Medinah at Malik's time, while others imply that it was particular people of
> knowledge. If it was the latter, I would assume that since Malik studied with
> so many hundreds of Sheikhs, that thier actions might be the 'amal. But I get
> the impression that the 'amal is more than 1,000 people. Could you please
> clarify this for me?

There is no need to be confused about this point - as the opinion of the
majority of Madinan scholars *was* the opinion of the masses living in Madinah.
This is because common people (even today) only learn from those that are
teaching (either through their verbal or written word).  Thus, the cross-section
of the opinions of the hundreds of Madinan scholars Imam Malik studied with
(which is preserved in his madh-hab) accurately describes the dominant
`amal of the masses living in Madinah.

Reference:
  Introduction to al-Mudawwanah al-Kubra

> Is there a difference between the fard and the wajib in Maliki fiqh?
> In evidences for the action? In how the actions is performed?
> Why are there two different words?

Ibn Rushd (al-kabir) writes: that in the Maliki school five words are used as synonyms: (1) wajib, (2) fard,
(3) hatm, (4) lazim, and (5) maktub.  And all five of these terms are used to signify "obligatory" in
the Qur'an.

Thus, generally speaking, there is no difference between an act labeled as fard and an act labeled
as wajib in the Maliki school.

However, there is one exception in the subject of Hajj.  In Hajj (for some odd reason) the traditional
Maliki scholars  have labeled a wajib essential act (without which Hajj cannot ever be correct)
as a "fard" - and they have labeled a wajib non-essential act (which can be corrected with blood
sacrifice or fasting) as a "wajib".

This can cause confusion for beginners, so we have consistently used "wajib" instead of fard throughout
the entire Guiding Helper Explanatory Notes.  Now in the subject of Hajj, we have called the
Maliki Hajj "fard" a "wajib essential" and the Maliki Hajj "wajib" a "wajib non-essential"

References:
    Entry 103 of the Notes of Sources for the Main Text.
    [{Introduction to Notes on Mudawwanah, Ibn Rushd}]
    [KF: volume 1: page 149: line(s) 21-23:
    {Hajj, question 6 (difference between a wajib and a fard}]

Now as a side note we will mention the Shafi`i school is in agreement
with the Maliki school on the definition of fard and wajib -only differentiating
between the two in the subject of Hajj.

However, the Hanafi school is the school which complicates matters.  The
Hanafis generally have seven legal categories instead of the normal five
(fard, wajib, mandub, mubah, makruh, makruh tahrimi, and haram).

The Hanafis state that fard is a higher category of obligation than
wajib.  They state that the act labeled as fard has its obligatoriness
derived directly from the *Qur'an* and the act labeled as wajib has its
obligatoriness derived from either hadith or ijma`  (consensus of the scholars).

Thus, to answer your question:  only non-Maliki scholars really differentiate
between fard and wajib.  And the reason they differentiate between these
two is based upon whether the act is derived from Qur'an or whether it
is derived from hadith or ijma`.

> Another question regarding Kalam. Have the Kalam books (QF, DT etc.) you
> used in Guiding Helper (including Ibn Ashirs, been used traditionally in
> Qarawayin and Zaytuna and the likes? I was wondering because I heard that
> at one time (maybe the time of the Murabitun??) that Kalam was banned in
> Andalusia. I was wondering if there were many anti-kalam Malikis, and if
> they held much sway.

Yes.  There have been anti-Kalam Malikis (primarily the very early ones).
However, for about 800 years now, the Maliki scholars have called a
truce with the mutakallimin.  The decisive turning point was the
introduction of Sunusis' Umm al-Barahin (which Ibn `Ashir based his
kalam on).  Sunusi was a Maliki.

The early Maliki scholars (e.g, in Abu Zayd ibn al-Qarawayn's time),
were against deep study of the tenets of faith using logic.  They
based this on the statement of Imam Malik (narrated in the
`Aqidah Chapter of the Ihya' al-`Ulum al-Din):

   Imam Malik said, "It is better for a person to meet Allah on
   the Last Day with every sin except shirk than to meet him
   on the last day with a bit of kalam."

Some early Maliki scholars thus applied this statement without
qualifications to all branches of kalam.

Then, it was later understood that Imam Malik was only talking
about "godless" philosophy when he said "kalam" above and was not talking
about backing up the tenets belief with sound logic.

References:
   al-Ghazali's Ihya al-`Ulum al-din. `Aqidah chapter

>  The essence of my question I guess is, what is classified
>  as extremely difficult, and moderately difficult. I
>  have seen some Shafi'i's combining dhuhr and asr, due to
>  being busy in meetings or other such work. I was
>  shocked at this, because it seemed that the rules for
>  combining prayers were a bit stricter than this. They
>  apparently had a different notion of "difficult." How do
>  we define it?

The astute fuquha' do not strictly define "difficulty" when
speaking of dispensations.  This is because each person is
different in the amount of burden he can handle and the amount
of troubles he can bear.

Rather, the astute fuquha' give general guidelines and leave it
to individuals to decide whether they can take the dispensation
or not.  The general guideline for this dispensation is that if
the individual feels that the problem is repetitive - the proof
of which is that he can never voluntarily keep his ablution from
high-noon until he goes to sleep at night, then this individual may
ignore his uncontrollable emissions until he gains better control.

This principle is taken from a hadith [whose reference we do
not have at hand] in which a Companion received a wound on
his forehead and asked the other Companions whether it was
enough to perform dry ablution in his condition or not.  The
other Companions stated that he should perform wet ablution
as a small/medium-sized wound was not enough to jump
to dry ablution.  The wounded Companion then proceeded to
perform wet ablution.  This wounded Companion subsequently
got ill and died [as a direct consequence of his wound becoming
worse].  This incident was mentioned to the Prophet [May Allah
bless him and give him peace] and he stated to the Companions
who denied the man the right to perform dry ablution, "You have
killed your brother."

The non-astute fuquha' will either make things too hard or too
easy for people by giving too many specific details.

> Within ones own school, is it considered a rukhsa to
> follow an opinion that differs from the majority opinion?
> I visited a Shafi'i sheikh and he said that when Ibn Ajiba
> lists all the different opinions in the Hanafi school, you
> only take the one that he supports. This seems like a
> methodological rule, for keeping things orderly and to
> prevent people from making a game of the religion. But it
> seems to me that a valid opinion is a valid opinion.

Technically speaking, any easier opinion that strays from
the popular opinion is a rukhsah (as you note this is for
"keeping things orderly ")

If the opinion was issued by someone qualified in at least
qiyas or limited ijtihad within the madh-hab, then it is
permissible to follow either that opinion or the popular
opinion.  The qualification for performing qiyas within the
madh-hab are:

   a) Being thoroughly learned in the Arabic rulings for
      all the twenty subjects in the madh-hab (basically,
      the person knows the twenty subjects mentioned
      in Ibn Juzayy al-Kalbi's al-Qawanin al-Fiqhiyyah
      inside out)
   b) Being aware of the ijma` positions within our din
      (e.g., eating pork and drinking wine is unlawful
      except when in dire hunger/need)
   c) Knowing the reasonings and basis (`illah) behind
      the rulings for which one is attempting to perform qiyas
      along with knowing the other arkan (essentials)
      and shurut (preconditions like 'la qiyasa fi wujudi
      al-fariq') of qiyas.

Thus, since the above is not rare to find, there are many
people alive today that can perform qiyas within the Maliki
school.

References:
  Entry 1131 of the Notes of Sources for the Main Text.

The qualifications for limited ijtihad are more involved
and entail that the person is also qualified in the
methods for deriving laws within the madh-hab (e.g., those
outlined in the book UF) and has a firm grounding in
the primary texts (e.g., memorization and understanding
of the Arabic Qur'an and thousands of Arabic hadith
(but not as many nor in as much detail as an absolute
mujtahid needs (an absolute mujtahid needs to memorize
and thoroughly understand at least 100,000 authentic
hadith with their chains (knowing the merit of the
men in the chain)); there are no absolute mujtahids
alive today that we are aware of; one of the last ones
alive was Qadi Ibn al-`Arabi (born in Spain) the author
of the Quranic Tafsir "Ahkam al-Qur'an" about 800-900
years ago who was at first a Maliki scholar and then
formed his own madh-hab)).

[To clarify, a limited mujtahid mostly uses principles
 established by the mujtahid imam who formed his/her school
 to reach the rulings of new affairs and also refers to
 primary texts where necessary to ensure conformity of
 the final rulings with what the Prophet (May Allah bless
 him and give him peace) actually taught.

 The absolute mujtahid on the other hand comes up with
 derivation principles himself from scratch using his/her
 mastery of the primary texts and associated branches of
 knowledge.]

> Some people say that prayer with a wallet made of leather (killed in the wrong way)
> is not valid because it is najis and explain opinions like the one in the GH as being
> a dispensation and the prayer is still invalid?

The popular opinion in the Maliki School was set down 900 years ago and in view of
contemporary (at that time) circumstances.  For example, most skin 900 years ago in
the Muslim world was from a slaughtered animal - so this was not a difficult issue.  Today,
most skin (especially in the West) is from unslaughtered animals and this has made this ruling
very difficult.

There is another narration from *Imam Malik* that states that tanned skin is pure regardless
of whether it is slaughtered or unslaughtered.  This is not the opinion of Ibn Qasim in the
Mudawwanah and thus was not labeled by Ibn Rushd as popular.  This however remained
a minority opinion stored in the ancient books and taught by the advanced teachers to use
if there was a need to do so.

Reference(s):
   [AM: volume 1: page(s) 464: line(s) 1: {dhaba'ih, section on the skin of the
    dead unslaughtered animal}]

Once we have narrated a valid opinion, then for consistency, all associated opinions are
*also* changed (for those who follow this opinion).  And this is the reason for the ruling
given in footnote 321 of the Explanatory Notes.

People who only learn fiqh in a narrow-minded way and are ignorant of the method the
popular opinion was derived (see footnote 196 of Notes of Source) from the various
narrations within the madh-hab will ruin the consistency of the madh-hab (with such
rip-and-tear dispensations) or produce rulings which are impossible (or very difficult) to
follow by the common man today - in effect making the madh-hab obsolete.  We cannot go
against ijmaa` nor a strong agreed upon point within the madh-hab, but there is nothing
wrong with narrating a non-popular opinion or an opinion from outside the Maliki School
as long as we tell people what we are doing (e.g., in a Notes of Sources Book).

Advanced scholars realize this and realize that the popular opinion was made to avoid fitna
among the Malikis so that multiple people would not argue about the same issue.

The later *rulers* and government-sanctioned scholars tried to impose rules forcing people
to only follow the popular opinion, but such has no basis in either our din nor early Maliki
madh-hab.

Reference(s):
   See Previously Answered Questions Learning About the Din about issues of ikhtilaf
   and talfiq and rukhas.

[As for the few strict opinions in the Guiding Helper Explanatory Notes,
the reason for them is to provide stringency for those travelling the
Path and also to ensure conformity to the popular opinion in most
subjects for purposes of increased reliability.]



> I've been trying to learn Maliki Fiqh, and have come to find that most
> internet sites also promote Sufism. What I want to know is sufism and
> Maliki Fiqh go hand and hand together? Also are all the contemporary
> Maliki Scholars today sufi's, are there any whom find sufism incorrect?

First you should clear up misunderstandings about what "Sufism" is
according to the Maliki scholars.  Many people use this word to
describe esoteric practices which have no basis in our primary
texts.

To understand what we mean by tasawwuf, please review the translation
of lines 291 to 310 in the Murshid Translation found on:

   http://www.guidinghelper.com/otherTexts.html

If you understand correctly, you will see that the Maliki scholars
are using tasawwuf to describe the branch of knowledge that teaches
you how to be a good person inside.  And this is all that is required of
you.  We do this to avoid having the case where people practice the
Maliki School outside but are far from the Mercy and Pleasure of
Allah due to the ugliness of their inner-selves and disease-filled
hearts.-




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