Questions on Some Issues Related to Maliki Usol and Minority Fiqh

The Question:

I hope you are well:

What is ‘shepherding differences” you’ve eluded to a number of times in your answers in the school? Also, what justification does Sh. Bin Bayyah have for taking the marjouh opinion?

Asalamu alaykum wa rahmatullahi wa barakatuh:

I think other some of our brothers might not be aware of the scope of taking the Marjooh that exists in the Maliki School? For that reason, we’ve seen a large number comments regarding Dr. Bin Bayya’s statement, which he quoted from al-Bannani al-Maliki, that a Mujtahid can take the marjoh.

A quick glance at the more advanced texts in Usol show that the Malikis went beyond “Escaping differences” but added, Mur’atu al-khilaf, “shepherding differenes,” the former being a part of the latter in its universal usage since its usage came after issues arose and not before. Meaning, the Malikis were not only concerned with ikhtilaf before it happened only, but after the fact as well. This represents the genius of Imam Malik, his closeness to the understanding of the Salaf and grants the Maliki school space to flourish and coexists with other rites.

Broadening the Concept of Ikhtilaf

Thus, “escaping differences” implies that one, he were the Imam for a group of Shafi’s, Hanbalis or Hanafis, would recite the basmalah in a silent voice; honoring the Hanafi, Shafi and Hanbali proofs. Such an act is considered disliked in prayer unless, as noted by our scholars, it is done out of taqlid of a mujtahid who holds that opinion or mura’at al-khilaf [En. Shepherding the differences] as illustrated above.

An Example of this from Imam Malik

Take a look at Imam Malik’s position on a corrupted marriage such as al-Nikah al-Shigar. It is the position of the school that such a marriage is fasid and annulled. This is based on the statement of the Prophet that “There is no al-Nikah al-Shigar in Islam.” Abu Hanafi (ra) differed and held that the cause for this prohibition was the absence of a sound mahr. Thus, if the mahr was paid the marriage was valid. Now, on the issue of inheritance, in case one of the spouses died in such a marriage, we find that Imam Malik considers such inheritance as sound? This is an example of Mur’atu al-Khilaf. Although he felt the marriage was annulled, based on his respect and honor for the Hanafi’s al-Adilah, he held that under the following circumstances:

 

1. They had lived together
2. They had sexual relations
3. Perhaps they had children
4. Perhaps they had been married for years not aware that the marriage was corrupted

Inheritance agreed with the proofs and ideas of Abu Hanifah. Thus, the ruling changed in order to achieve the benefit [Ar. Maslaha]

Where Do I Find This Stuff?

Not all acts fall under “Guarding the differences” so one, if he is not a qualified mujtahid, would have to refer to the trustworthy books in the school: al-Dasuqi’s work on Sh. Dardir’s explanation of Khalil’s mukhtasar and, of course, al-Sharh al-Saghir are great places to find these things.

Compassing the Differences

Muratu al-Khilaf is a safe guard that protects the community after the initiation of an act. For that reason Ibn Abdu al-Salam al-Maliki al-Tunis, who died in the 9th century defined it as, “Using both dalils, for rulings, whose correct usage is demanded by circumstance.”

Regard is for the Dalil not for Differences in Themselves

It should be noted as Dr. Muhammad Salim al-Shankiti stated that the goal of Mur’atu al-Khilaf is respect for sound proofs and not khilaf itself. As some noted, “If regard was given to differences alone, then there would be no madhab. However, what is respected here is the soundness of the proofs.”

Confusing al–Shattibi

One of the problems that some of our brothers have is their reading of al–Shattibi‘s comments on Muratu al-Khilaf. One time an avid denier of its reality; al–Shattibi (D. 791) after many discussions with the scholars of his time, including al-Qabab who responded to al-Shattibi directly, changed his opinion and said in al-Muwafatqat, “Mura’at al-Khilaf is one of the usol of Imam Malik’s school.”

Latter on he wrote, and I’m paraphrasing, “due to circumstances, what was once the marjooh, becomes the Rajih to the Mujtahid after a change in the realities and settings that forced such a change.”

Taking the Marjooh

One who ponders on the above would easily realize that Imam Malik took, in the case of inheritance of such a marriage previously mentioned, both dalils, made them work, and drew rulings from them. In other words, what was once the marjooh became the rajih. This is also apparent in other schools, but not to the degree of the Malikis. For example the Shafi’s ease their position on breaking one’s wudu when touching the opposite sex when one is making Tawaf.

The only issues the Maliki’s had with Mur’atu al-Khilaf is its essence

Being a principle of Islamic Law
Being a principle of jurisprudence

The former serving as an interpretive lens that guided thoughts, the latter serving as a platform for rulings in themselves. However, there were some who felt it was not from the Usol of the school and they are the minority. This was noted by Ibn Abi Kahf in his poem on the Maliki Usol.

The idea of taking the Marjooh for the Mujtahid was expounded on by a Mauritanian scholar who wrote a poem called Tulahah [the small tree] because he composed it under a small tree in one sitting. In that poem, which I have in my possession, he address 23 lines on taking the marjooh and its conditions:

1. One should be a Mujtahid
2. Know the time
3. Know the place
4. Know the causes
5. Know, if what he is actually using, is the Marjooh

This poem forms the conditions for what is known, and what al-‘Allamah Bin Bayyah refers to as, “Juryan al-Amal.” Thus, attacks of relativism and hyper post modernity are reflections of ones ignorance of the school’s scope, usol and an inability to come to grips with a strictly Maliki enterprise. Although there are glimpses of this in other schools, as noted earlier.

The Prophet Taking the Marjooh

1.  Letting the man urinate in the mosque
2. Not rebuilding the K’aba due to the Arabs recent conversion to Islam
3. Not killing Abdullah bin Ubai the head of the hypocrites

Now, in the Maliki School, this leads into three more important foundational sources of law: ithsan, ‘Urf and al-Maslaha. No time for that now. Take care and keep me in your prayers.

Suhaib