Maliki

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Sunni schools of law

Extinct
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Sharia based on Maliki school (in teal) is the predominant Sunni school in North Africa, West Africa and parts of central eastern Arabian peninsula.[1]

The Mālikī (Arabic: مالكي‎) madhhab is one of the four major schools of Fiqh or religious law within Sunni Islam.[2] It was founded by Malik ibn Anas in the 8th century. The Maliki school of jurisprudence relies on the Quran and hadiths as primary sources. Unlike other Islamic fiqhs, Maliki fiqh also considers the consensus of the people of Medina to be a valid source of Islamic law.[3]

The Maliki madhhab is one of the largest group of Sunni Muslims, comparable to the Shafii madhhab in adherents, but smaller than the Hanafi madhhab.[1][4] Sharia based on Maliki doctrine is predominantly found in North Africa (excluding northern and eastern Egypt), West Africa, Chad, Sudan, Kuwait, Bahrain,[5] the Emirate of Dubai (UAE), and in northeastern parts of Saudi Arabia.[1]

In the medieval era, the Maliki school was also found in parts of Europe under Islamic rule, particularly Islamic Spain and the Emirate of Sicily.[6] A major historical center of Maliki teaching, from the 9th to 11th centuries, was in the Mosque of Uqba of Tunisia.[7][8]

History[edit]

Although Ibn Anas himself was a native of Medina, his school faced fierce competition for followers in the Muslim east, with the Shafi'i, Hanbali and Zahiri schools all enjoying more success than Malik's school.[9] It was eventually the Hanafi school, however, that earned official government favor from the Abbasids.

The Malikis enjoyed considerably more success in the Africa, and for a while in Spain and Sicily. Under the Umayyads and their remnants, the Maliki school was promoted as the official state code of law, and Maliki judges had free rein over religious practices; in return, the Malikis were expected to support and legitimize the government's right to power.[10] This dominance in Spanish Andalus from the Umayyads up to the Almoravids continued, with Islamic law in the region dominated by the opinions of Malik and his students. The Sunnah and Hadith, or prophetic tradition in Islam, played lesser roles as Maliki jurists viewed both with suspicion, and few were well versed in either.[11] The Almoravids eventually gave way to the predominantly-Zahiri Almohads, at which point Malikis were tolerated at times but lost official favor. With the Reconquista, the Iberian Peninsula was lost to the Muslims in totality.[citation needed]

Although Al-Andalus was eventually lost, the Maliki has been able to retain its dominance throughout North and West Africa to this day. Additionally, the school has traditionally been the preferred school in the small Arab States of the Persian Gulf (Bahrain, Kuwait and Dubai). While the majority of Saudi Arabia follows Hanbali laws, the country's Eastern Province has been known as a Maliki stronghold for centuries.[citation needed]

Principles[edit]

Maliki school's sources for Sharia are hierarchically prioritized as follows: Quran and then trustworthy Hadiths (sayings, customs and actions of Muhammad); if these sources were ambiguous on an issue, then `Amal (customs and practices of the people of Medina), followed by consensus of the Sahabah (the companions of Muhammad), then individual's opinion from the Sahabah, Qiyas (analogy), Istislah (interest and welfare of Islam and Muslims), and finally Urf (custom of people throughout the Muslim world if it did not contradict the hierarchically higher sources of Sharia).[2]

The Mālikī school primarily derives from the work of Malik ibn Anas, particularly the Muwatta Imam Malik, also known as Al-Muwatta. The Muwaṭṭa relies on Sahih Hadiths, includes Malik ibn Anas' commentary, but it is so complete that it is considered in Maliki school to be a sound hadith in itself.[3] Mālik included the practices of the people of Medina and where the practices are in compliance with or in variance with the hadiths reported. This is because Mālik regarded the practices of Medina (the first three generations) to be a superior proof of the "living" sunnah than isolated, although sound, hadiths. Mālik was particularly scrupulous about authenticating his sources when he did appeal to them, however, and his comparatively small collection of aḥādith, known as al-Muwaṭṭah (or, The Straight Path).[3]

The Great Mosque of Kairouan (also called the Mosque of Uqba or Mosque of Oqba) had the reputation, since the 9th century, of being one of the most important centers of the Maliki school.[12] The Great Mosque of Kairouan is situated in the city of Kairouan in Tunisia.

The second source, the Mudawwanah, is the collaborator work of Mālik's longtime student, Ibn Qāsim and his mujtahid student, Sahnun. The Mudawwanah consists of the notes of Ibn Qāsim from his sessions of learning with Mālik and answers to legal questions raised by Saḥnūn in which Ibn Qāsim quotes from Mālik, and where no notes existed, his own legal reasoning based upon the principles he learned from Mālik. These two books, i.e. the Muwaṭṭah and Mudawwanah, along with other primary books taken from other prominent students of Mālik, would find their way into the Mukhtaṣar Khalīl, which would form the basis for the later Mālikī madhhab.

Maliki school is most closely related to the Hanafi school, and the difference between them is more of a degree, rather than nature.[13] However, unlike Hanafi school, Maliki school does not assign as much weight to analogy, but derives it rulings from pragmatism using the principles of istislah (public interest) wherever the Quran and Shahih Hadiths do not provide explicit guidance.[13]

Notable differences from other schools[edit]

The Maliki school differs from the other Sunni schools of law most notably in the sources it uses for derivation of rulings. Like all Sunni schools of Sharia, the Maliki school uses the Qur'an as primary source, followed by the sayings, customs/traditions and practices of Muhammad, transmitted as hadiths. In the Mālikī school, said tradition includes not only what was recorded in hadiths, but also the legal rulings of the four rightly guided caliphs - especially Umar.

Malik bin Anas himself also accepted binding consensus and analogical reasoning along with the majority of Sunni jurists, though with conditions. Consensus was only accepted as a valid source of law if it was drawn from the first generation of Muslims in general, or the first, second or third generations from Medina, while analogy was only accepted as valid as a last resort when an answer was not found in other sources.[14][15] Malik was reported to have only actually used analogy himself one time, which he regretted on his deathbed.[citation needed]

Views[edit]

Apostasy[edit]

The Maliki school considers apostasy, that is the act of leaving Islam or converting to another religion or becoming an atheist, as one of six major religious crimes.[16][17][18] Leaving Islam is a Hudud (or Hadd) crime in Maliki jurisprudence, that is one of six "crimes against God" a Muslim can commit, which deserves the fixed punishment of death as that is a "claim of God".[16][19] The Maliki school permits up to ten days for recantation, after which the apostate must be killed. Both men and women apostates deserve death according to the traditional view of the Maliki.[18]

The Maliki school, as with other Muslim fiqhs, considers apostasy as a civil liability as well.[19][20] Therefore, (a) the property of the apostate is seized and distributed to his or her Muslim relatives; (b) his or her marriage annulled (faskh); (c) any children removed and considered wards of the Islamic state.[19] In case the entire family has left Islam, or there are no surviving Muslim relatives recognized by Sharia, the apostate's property is liquidated by the Islamic state (part of fay, الْفيء).[21][22] The Maliki school does not consider any wait as mandatory before children and property are seized.[23]

Blasphemy[edit]

Maliki law views blasphemy as an offense distinct from, and more severe than apostasy. Death is mandatory in cases of blasphemy by Muslim men, and repentance is not accepted. For women, death is not the required punishment, but she is arrested and punished till she repents and returns to Islam or dies in custody.[24][25] A non-Muslim who commits blasphemy against Islam must be punished; however, he or she can escape punishment by converting and becoming a devout Muslim.[26]

Stoning[edit]

Maliki school of jurisprudence (fiqh) holds that stoning is the required punishment for illegal sex by a married person, as well as for any form of homosexual relations.[27] In Al-Muwatta, the 8th century Sunni Islamic scholar Malik ibn Anas states that contested pregnancy in a free Muslim woman is proof of adultery and she must be stoned to death.[28][29]

Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullah ibn Utba ibn Masud that Abdullah ibn Abbas said, "I heard Umar ibn al-Khattab say, 'Stoning is in the Book of Allah for those who commit adultery, men or women when they are muhsan and when there is clear proof of pregnancy or a confession.'"

– Malik ibn Anas, Al-Muwatta[30]

Slavery[edit]

See also: Islamic views on slavery

Malik ibn Anas in 8th century, as well as later Maliki jurists dedicate a significant portion of their discussion on slave law in their interpretation of Sharia.[31] They use the terms abd, amah, fata, gulam, jariyah, raqiq, khadim, mamluk and others to refer to different types of slaves. Most discuss ownership rights over slaves captured in war or purchased in slave markets, the duties of the slaves, punishment of slaves who steal or have illegal sex or commit other crimes, rights of men to force sex on a slave with or without consent, requirements of master's permission and the process by which a slave can legally marry, inheritance of slavery by a slave's children, how masters can will, gift or sell their slaves.[31][32] Some sections of the Maliki school's literature on law discuss the process of emancipation of slaves who convert to Islam, as well as the property rights of such emancipated slaves. Malik ibn Anas' foundational book for the Maliki school dedicates three chapters to slavery: ataqah wa-wala, mukatab and mudabbar.[31][33][34]

Prayer[edit]

Also See: Salat There are slight differences in the preferred methods of ṣalāt, or prayer, in the Māliki school.[35]

  • Not reciting any supplications before the Fātiḥah in obligatory prayers (the Bismillah, reciting "in the name of Allah, the most Gracious, the most Merciful" before the Fātiḥah.).
  • Tashahhud - Turning the right-handed fist onto its side (so that the smallest finger is touching the thigh) and the right index finger is moved from side to side.
  • Qunūt is to be recited only in the morning prayer.[36]
  • Malikis don't say anything during the kneeling position of prayer.[37]

Other[edit]

  • The Maliki school requires that an adult Muslim woman must receive permission from her father, or guardian, in order to legally marry.[38] Her guardian has the right to arrange and compel a girl's marriage, if she is a virgin minor, a minor who is a divorcee or widow, or a girl/woman who is declared to be of unsound mind.[39] Unlike females, male Muslims must consent and cannot be forced to marry under Maliki jurisprudence.[citation needed]
  • Mahr (dower, brideprice) is a religious requirement in Maliki school, like others, for a legal marriage. However, it can be a promise of cash or property and is treated as a debt in the Maliki and Hanafi madhhabs. Half of the Mahr must be paid at or after marriage, but before consummation of a valid marriage, in contrast to Shafi'i and Hanbali schools where the whole Mahr can be postponed.[40]
  • A valid marriage under Maliki jurisprudence requires two reliable witnesses, either both of whom must be Muslim men or one of whom is a Muslim male and two are Muslim women (woman's evidence is considered half as reliable as of a man's).[41]
  • Pregnancy outside of marriage is considered as proof of zina - a religious crime, in Maliki jurisprudence.[42] Homosexuality is also considered zina and is punishable with death in Maliki jurisprudence.[43]
  • Traditional Maliki school texts state that male circumcision is wājib (obligatory), and female circumcision (FGM) is sunnah (preferred but optional).[44][45]
  • Music and singing was declared haram and therefore forbidden by Maliki scholars, based on their analysis of the Quran and hadiths.[46][47] They recommended destruction of all musical instruments, and campaigns were held by Maliki adherents from the early Islamic period through the 20th century to destroy musical instruments. Some scholars recommended Muslim neighbors to enter homes making or enjoying music, and then destroy the source.[48]
  • Painting of a picture (taswir) as well as any sculpture of any supernatural being, human being or animal (anything with a head) from any material, was declared as religiously unlawful by Maliki scholars.[49][50][51] However, Maliki scholars allowed painting and carving of leaves, trees or inanimate objects on walls, ceilings, floors, robes and objects.[49]
  • The Maliki school considers admission in a court of law to be divisible; that is, a plaintiff could accept some parts of a defendant's testimony while rejecting other parts. This position is also held by the Hanafi school, though it is opposed by the Zahiris and the majority of the Hanbalis.[52]

Notable Mālikīs[edit]

Contemporary Malikis[edit]

See also[edit]

References[edit]

  1. ^ a b c Jurisprudence and Law - Islam Reorienting the Veil, University of North Carolina (2009)
  2. ^ a b Hisham M. Ramadan (2006), Understanding Islamic Law: From Classical to Contemporary, Rowman Altamira, ISBN 978-0759109919, pp. 26-27
  3. ^ a b c Vincent J. Cornell (2006), Voices of Islam, ISBN 978-0275987336, pp 160
  4. ^ Abdullah Saeed (2008), The Qur'an: An Introduction, Routledge, ISBN 978-0415421256, pp. 16-18
  5. ^ International Religious Freedom (2000)
  6. ^ Bernard Lewis (2001), The Muslim Discovery of Europe, WW Norton, ISBN 978-0393321654, p. 67
  7. ^ Wilfrid Scawen Blunt and Riad Nourallah, The future of Islam, Routledge, 2002, page 199
  8. ^ Ira Marvin Lapidus, A history of Islamic societies, Cambridge University Press, 2002, page 308
  9. ^ Camilla Adang, This Day I have Perfected Your Religion For You: A Zahiri Conception of Religious Authority, pg. 17. Taken from Speaking for Islam: Religious Authorities in Muslim Societies. Ed. Gudrun Krämer and Sabine Schmidtke. Leiden: Brill Publishers, 2006.
  10. ^ Maribel Fierro, Proto-Malikis, Malikis and Reformed Malikis in al-Andalus, pg. 61. Taken from The Islamic School of Law: Evolution, Devolution and Progress. Eds. Peri Bearman, Rudolph Peters and Frank E. Vogel. Cambridge, Massachusetts, 2005.
  11. ^ Fierro, "The Introduction of Hadith in al-Andalus (2nd/8th - 3rd/9th centuries)," pg. 68-93. Der Islam, vol. 66, 1989.
  12. ^ Roland Anthony Oliver and Anthony Atmore, Medieval Africa, 1250-1800, Cambridge University Press, 2001, page 36
  13. ^ a b Jamal Nasir (1990), The Islamic Law of Personal Status, Brill Academic, ISBN 978-1853332807, pp. 16-17
  14. ^ Mansoor Moaddel, Islamic Modernism, Nationalism, and Fundamentalism: Episode and Discourse, pg. 32. Chicago: University of Chicago Press, 2005.
  15. ^ Reuben Levy, Introduction to the Sociology of Islam, pg. 237, 239 and 245. London: Williams and Norgate, 1931-1933.
  16. ^ a b Mohamed El-Awa (1993), Punishment in Islamic Law, American Trust Publications, ISBN 978-0892591428, pp 49-56, 1-68
  17. ^ Frank Griffel (2001), Toleration and exclusion: al-Shafi ‘i and al-Ghazali on the treatment of apostates, Bulletin of the School of Oriental and African Studies, 64(03): 339-354
  18. ^ a b David Forte, Islam’s Trajectory, Revue des Sciences Politiques, No. 29 (2011), pages 92-101
  19. ^ a b c Peters & De Vries (1976), Apostasy in Islam, Die Welt des Islams, Vol. 17, Issue 1/4, pp 1-25
  20. ^ Heffening, W. (1993). "Murtadd". In C.E. Bosworth, E. van Donzel, W.P. Heinrichs; et al. Encyclopaedia of Islam 7. Brill Academic Publishers. pp. 635–6. ISBN 978-90-04-09419-2. 
  21. ^ Samuel M. Zwemer, The law of Apostasy, The Muslim World, Volume 14, Issue 4, pp. 373–391
  22. ^ Kazemi F. (2000), Gender, Islam, and politics, Social Research, Vol. 67, No. 2, pages 453-474
  23. ^ Peters & De Vries (1976), Apostasy in Islam, Die Welt des Islams, Vol. 17, Issue 1/4, pp 7-8
  24. ^ Qadi 'Iyad ibn Musa al-Yahsubi (1145), Kitab Ash-shifa (كتاب الشفاء بتعريف حقوق المصطفى), pp. 373-441 (Translated in English by AA Bewley, OCLC 851141256, (Review Contents in Part 4, Read Excerpts from Part 4, Accessed on: January 10, 2015)
  25. ^ D Jordan (2003), Dark Ages of Islam: Ijtihad, Apostasy, and Human Rights in Contemporary Islamic Jurisprudence, The. Wash. & Lee Race & Ethnic Anc. Law Journal, Vol. 9, pp. 55-74
  26. ^ Carl Ernst (2005), "Blasphemy: Islamic Concept", Encyclopedia of Religion (Editor: Lindsay Jones), Vol 2, Macmillan Reference, ISBN 0-02-865735-7
  27. ^ Nisrine Abiad (2008), Sharia, Muslim States and International Human Rights Treaty Obligations, British Institute of International and Comparative Law, ISBN 978-1905221417, pp. 24-25
  28. ^ Al-Muwatta, 41 1.8
  29. ^ Ismail Poonwala (2007), The Pillars of Islam: Laws pertaining to human intercourse, Oxford University Press, ISBN 978-0195689075, pp. 448-457
  30. ^ Al Muwatta 41 1.8
  31. ^ a b c Jonathan E. Brockopp (2000), Early Mālikī Law: Ibn ʻAbd Al-Ḥakam and His Major Compendium of Jurisprudence, Brill Academic, ISBN 978-9004116283, pp. 147-158
  32. ^ Josef Meri (2005), Medieval Islamic Civilization: An Encyclopedia, Routledge, ISBN 978-0415966900, pp. 757-762
  33. ^ Al Muwatta 39 1.1 to 39 12.15
  34. ^ Al Muwatta 41 2.13 to 41 11.32
  35. ^ The Risala of 'Abdullah ibn Abi Zayd al-Qayrawani: A Treatise on Maliki Fiqh. Chapter 10: On How to Do the Fard Prayers and the Sunna and Nafila Prayers Connected with Them
  36. ^ "Salat According to Five Islamic Schools of Law" from Oneummah.net
  37. ^ Making Moral Decisions, p 106 John Holm
  38. ^ Otto, Jan Michiel. Sharia and National Law in Muslim Countries. Amsterdam University Press. ISBN 978-90-8728-048-2. 
  39. ^ Ziba Mir-Hosseini et al (2013), Gender and Equality in Muslim Family Law, ISBN 978-1848859227, p. 130
  40. ^ Pascale Fournie (2010), Muslim Marriage in Western Courts: Lost in Transplantation, Ashgate Publishing, ISBN 978-1409404415, p. 12
  41. ^ Charles Mwalimu (2005), The Nigerian Legal System: Public law, ISBN 978-0820471259, p. 553
  42. ^ Wendy Chavkin and Ellen Chesler (2005), Where Human Rights Begin: Health, Sexuality, and Women in the New Millennium, Rutgers University Press, ISBN 978-0813536576, p. 75
  43. ^ Jeffrey Siker (2006), Homosexuality and Religion: An Encyclopedia, ISBN 978-0313330889, p. 131
  44. ^ Ibrahim Asmani and Maryam Abdi (2008), Delinking Female Genital Mutilation/ Cutting from Islam Population Council, pp. 13-14
  45. ^ Ibn Babwayhi (1957), Man la Yahduruhu Al-Faqih, 4th Ed, Najf, Vol. 3, pp. 314-319
  46. ^ M Cook (2010), Commanding Right and Forbidding Wrong in Islamic Thought, Cambridge University Press, ISBN 978-0521130936, pp. 91-103, 145-182
  47. ^ Sahih al-Bukhari, 2:15:72,
    Sahih al-Bukhari, 7:69:494v,
    Sunan Abu Dawood, 34:4218,
    Quran 53:61
  48. ^ M. A. Cook (27 May 2003). Forbidding Wrong in Islam: An Introduction. Cambridge University Press. pp. 31–42, 60–68, 104–129. ISBN 978-0-521-53602-8. 
  49. ^ a b
  50. ^ Zaky Hassan (1944), The attitude of Islam towards painting, Bulletin of the Faculty ofArts (Cairo University), Vol. 7, pp. 1-15
  51. ^ Isa Salman (1969), Islam and figurative arts, Sumer, Vol. 25, pp. 59-96
  52. ^ Mahmasani (1961), Falsafat al-tashri fi al-Islam, pg. 175. Trns. Farhat Jacob Ziadeh. Leiden: Brill Archive

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