The non-legislative “Sunnah” according to Imam Malik bin Anas

The use of the terms “legislative year” and “non-legislative year” is correct if we mean the term “sunnah” for the modernists, which is synonymous with the totality of narrations from the Messenger.

Since contemporary scholars and thinkers began writing about the diversity of prophetic behaviors according to their legislative significance and their classification among Islamic scholars, and since starting from that to renew the vision in the topics of political thought with an Islamic reference;

The writings are published, trying to discredit what has been termed “the division of the Sunnah into legislative and non-legislative.”

It is unfortunate that the discussion sometimes calls for statements or general accusations, such as accusations of secularism, intellectual deviation, modernist reading, deviation from the approach of Ahlus-Sunnah wal-Jama`ah and others, which do not benefit knowledge and provide nothing in analyzing and treating the subject.

It is also often said that this division is an innovation that those who advocate it have not previously.

It is true that the distinction between what is for legislation and what is not for legislation from the narrations from the Prophet, may God’s prayers and peace be upon him, is mutawatir from the companions and followers and many of the reputable imams.

It was a constant concern for which the curricula and rules were laid down according to what the diligence of each of the imams led to.

Their purpose is to understand what was narrated from him, may God’s prayers and peace be upon him, in the context of its vital context with its intertwined evidence: religious, psychological, mountainous (i.e. human nature), customary, social, material, political, and others, in order to avoid misunderstanding the saying of the Messenger of God, may God’s prayers and peace be upon him, his actions and his determination.

The first is to say that his actions, may God’s prayers and peace be upon him, are divided into legislative and non-legislative, while his Sunnah is all legislative by virtue of the definition that we have adopted, and it is the most consistent with the words of the scholars of the principles of jurisprudence and the origins of hadith through the centuries.

Every year is an act, not every act is a year

We start here first by checking the terminology so that the concepts do not get mixed up;

The use of the terms “legislative year” and “non-legislative year” is correct if we mean the term “sunnah” according to modernists, which is synonymous with the totality of narrations from the Messenger, may God bless him and grant him peace.

But if we use the term “Sunnah” according to its fundamentalist definition, that usage is not correct.

In a previous study, we concluded that the fundamentally chosen definition is that the Sunnah is “everything that was issued by the Messenger, may God’s prayers and peace be upon him, in terms of saying, deed, or report to be emulated, or what was issued in the place of legislation”[1].

Many behaviors were issued by the Messenger, may God bless him and grant him peace, but there are companions, followers and well-known imams who deny that it is a Sunnah.

We suffice to cite one example to illustrate this.

This is what Aisha, the Mother of the Believers, said: “The revelation of al-Abtah is not a Sunnah, but his Messenger, may God’s prayers and peace be upon him, revealed it because he was allowed to go out when he came out.”[2]

On the other hand, Nafi` narrated that Ibn Umar used to view Al-Tahsib as a Sunnah[3].

That is why Ibn Qayyim al-Jawziyya said: “The predecessors differed regarding al-Hasib: Is it Sunnah, or the house of agreement?” [4].

This is an act that the Messenger of God, may God’s prayers and peace be upon him, did, and Aisha said about it, it is not a Sunnah, and others said it is a Sunnah. Is it the first type or the second type?

This is a lot in the words of the people of knowledge.

Therefore, it is more appropriate to say that his actions, may God’s prayers and peace be upon him, are divided into legislative and non-legislative, while his Sunnah is all legislative by the definition that we have adopted, which is the most consistent with the words of the scholars of jurisprudence and the origins of hadith through the centuries [5].

The eminent Shafi’i jurist Yahya bin Sharaf al-Nawawi (d. 676 AH) related close to that on the authority of al-Shafi’i, as he says: “(…) al-Shafi’i, may God have mercy on him, left work on the apparent meaning of many hadiths that he saw and knew, but the evidence for him was that he challenged them, copied them, specified them, interpreted them, or towards that

Criteria for distinguishing between legislation and others according to Imam Malik

Our main purpose - in this article - is to show that this distinction between prophetic actions according to their legislative significance is old in the reports of scholars and imams.

Thus, we find its seeds in the Imam of the House of Hijrah Malik bin Anas (93-179 AH).

It is known that he used to narrate and write down hadiths, but he did not act upon them and issued fatwas contrary to them.

He has many preferences in this that were followed by the Maliki jurists and studied by the fundamentalists, whether accepting or rejecting them over the centuries, and one of them was abandoning the work of hadith because of his opposition to the apparent meaning of the Qur’an, or analogy, or the general rules or the work of the people of the city, within the framework of controls that he adheres to in this.

It is important to emphasize that the reason for Imam Malik's reluctance to act on a number of authentic hadiths is not because they are not proven in his view, but rather is his reliance on one or more of those probabilities.

This is not specific to Malik, but rather that many imams may abandon the work of some hadiths for reasons and probabilities that they have stated.

Ibn Rajab al-Hanbali (d. 795 AH) cited examples of this at the beginning of his explanation of al-Tirmidhi’s book “Al-Illal”.

Including that he said: “It was mentioned to Al-Thawri what was narrated on the authority of Umar, he said: Whoever does not catch up with the Friday prayer (i.e. in Muzdalifah) with the imam does not perform Hajj. Al-Thawri said: There have been hadiths that are not taken.”

And the imams of the Hanafi school set famous rules to control this matter.

Abu Bakr Al-Jassas says: “Likewise, the news of Sundays may be rejected for reasons.” Then he says: “Among the reasons for which the news of Sundays is reported to our companions is what Isa bin Aban said: He mentioned that the news of one is rejected in opposition to the established Sunnah, or that the Qur’an relates to its opposite in what is related to it. It does not bear the meanings, or it is from a general matter, so there comes a special news that the common people do not know, or it is an oddity that people have narrated and acted contrary to it” [7].

He also narrated after that on the authority of the Hanafi jurist Issa bin Aban (d. 221 AH) who said:

The imams, in general, agree on some of those probabilities that leave the work of the single news, and they differ on some of the others.

Malik bin Anas is almost alone among the imams of the sects in adopting the work of the people of Medina in the judiciary and fatwa, even if it is contrary to the narrated hadith.

It is a method that Malik stated repeatedly, for example, he was saying: I heard from Ibn Shihab (i.e. Al-Zuhri who died in 124 AH) hadiths that I have not spoken of to this day.

Ishaq bin Muhammad al-Farawi (d. 226 AH) asked him about the reason, and he said: “The work (that is, the work of the people of Medina) was not on her, so I left it” [10].

This approach was not invented by Malik, but he repeatedly stated that he took it from the scholars of Madinah from the Tabi’in, who inherited it from the Companions.

Malik said: “Men of the people of knowledge from among the followers used to narrate hadiths and inform them about others, and they would say: We do not know this, but the work has passed on other than them.”[11]

The work of the people of the city is of two types.

It is what is the method of transportation, and what is the method of diligence.

If the scholars are in agreement on the adoption of the first, there is a difference between them in the adoption of the second.

Al-Qadi Iyad al-Yahsibi narrated that “Al-Muwatta” was about ten thousand hadiths, so Malik kept looking into it every year, “and purifies them year after year, as much as he sees that it is better for Muslims and better in religion”[13], so he kept dropping out of those thousands until he remained.” Al-Muwatta’ is in the range of a thousand and a few hundred between the hadiths that are transmitted and transmitted

However, Malik viewed this second type on the basis of the characteristics and advantages that were available to Madinah, which were not available to any other city.

The honorable Companions - from the site of witnessing and living with them - were more knowledgeable than others about the conditions of the Messenger, may God bless him and grant him peace, the purposes of legislation, the reasons and the presumptions celebrating the Prophet’s actions. Al-Walid Ibn Rushd, the grandson (d. 595 AH), "sit with the concept of conditions and the meanings of sayings"[12], while these hadiths and prophetic conditions are often narrated in other cities without their circumstances and contexts.

Speech out of context may deviate from its correct meaning.

And if this downward civil ijtihad was a firm work, especially before the murder of Caliph Uthman bin Affan, and continued after him, apparently and in practice;

It is an argument for Imam Malik, who relies on him in understanding and directing the text.

Malik was a frequent reviewer and inspection of the hadiths he narrated;

He would drop - with the passage of time - what seemed to him a defect in his narrators, anomalies, or strangeness, or contradicted civil work, or otherwise.

Al-Qadi Iyad al-Yahsibi narrated that “Al-Muwatta” was about ten thousand hadiths, and Malik kept looking into it every year, “and purifies them year after year, as much as he sees that it is better for Muslims and better in religion”[13], so he kept dropping out of those thousands until he remained "Al-Muwatta" is within the range of a thousand and a few hundred between the hadiths attributed and sent, Malik's communications, and the effects of the companions and followers, until Imam Al-Hafiz Yahya bin Saeed Al-Qattan (d. 198 AH): People's knowledge was increasing, and Malik's knowledge was decreasing [14].

The fact that the hadith was not approved by Imam Malik - because of its violation of civil action - does not mean that it is false and that it is not valid. Rather, his student Abd al-Rahman bin al-Qasim (d. 191 AH) stated that he does not act upon it and does not deny it.

He says, when he was asked about a hadith that does not have to work according to the Malikis: “This has come, and this hadith had been accompanied by action - so that it would reach those of whom we carried and realized, and those who realized - then it would have been true. But it is like other hadiths that are not accompanied by action. ".

Then he mentioned examples of that, and said: “And he narrated things from other of his companions, then he did not rely and was not strong, and he acted with others, and the common people and the Companions took other than them, so he remained not disbelieved in it, nor is it applied, and he worked with other than that which was accompanied by deeds (i.e. the work of the people of the city) ), and the followers of the Prophet, may God bless him and grant him peace, took it from among the Companions, and he took it from the followers in the same way, without denying or rejecting what came and was narrated. .

So those hadiths - which Malik did not take into account - he does not lie with them, but he does not act upon them, i.e. they are true but they are not legislative, because the legislative act is what the Muslim is required to do in obedience to God Almighty.

Is this only an early distinction between prophetic, legislative and non-legislative actions??

Therefore, the jurisprudence of Malik bin Anas and his approach to adopting hadiths laid the first seeds for the systematic classification of prophetic actions, as was created in it - centuries later - by Shihab al-Din al-Qarafi al-Maliki (d. 684 AH).

Ibn Rushd and Shatby frame the origin of the consideration of civil work

It appears, then, that the importance of the work of the people of Medina goes beyond merely correcting this hadith or that and giving preference to what it contains of partial rulings, to providing a solid basis for the approach to dealing with the prophetic texts, and distinguishing between them in terms of their legislative significance.

Abu al-Walid Ibn Rushd (d. 595 AH) may have referred to something close to that when he considered the work of the people of Medina a different presumption of strength according to the subject in question, and according to the context and accompanying evidence.

He says, after questioning whether the work of the people of Medina is a "Shari'a evidence", likely being a methodological tool for dealing with the Prophetic text: "In general, the work is undoubtedly a presumption if it is associated with the thing transmitted. Does this presumption reach an amount by which the news of the established Sundays is reported?

Abu Ishaq al-Shatibi (d. 790) framed the concept of civil action with precision and depth[17] when he divided the prophetic actions according to the criterion of action by the predecessors of the Companions and followers.

Thus, he emphasized that any legal evidence either “is always or most of the pre-existing ancestors in force, or it is only a little or a certain time, or no action is proven.”

The most correct - according to Ibn Rushd - is that the work of the people of Medina is not a source of legislation, but it is a presumption that helps to understand the Prophet's actions in the correct manner, in interaction with other clues surrounding the text.

Hence, it is inaccurate to say that Malik refutes the news of Sundays if it contradicts the work of the people of the city, thus categorically;

Rather, he may or may not reject it, depending on the strength of the evidence and the degree of work of the people of Medina, in addition to the entirety of the evidence and other legal presumptions celebrating the text and expressing its context.

This vitality in the interaction of the presumption of civil work with the transmitted text, it became clear that not all of that work is on one level, as Malik differentiated between its types and degrees.

It is a presumption, just as it affects the degree to which the Prophetic text is proven to be both strong and weak, and it is also useful - and perhaps basically - in indicating the degree of its benefit to general legislation.

It is a foundation for a methodology in dealing with the Prophet’s text, in terms of whether it benefits the general legislation, or not.

Thus, he affirmed that any legal evidence is either “it is always or most of the pre-existing ancestors in force, or it is only in practice a little or at some time, or it is not proven by it.”

These are three sections.

As for the first section,

where the prophetic saying is associated with the work of the early predecessors;

“There is no problem in deducing it or working on it, and it is the Sunnah and the straight path.”

As for the second

category, it is the one who did not associate the Prophet’s saying with action “except for a little or at some time or in any case”, and the preference for others occurred and acting on it always or most of the time.

This other is the "Sunnah to Be Followed".

The reason for their abandoning the work must be ascertained according to the Prophet’s saying, as it must have a legitimate meaning.

And this section is of types, on the basis that the narration is likely to be a statement of limits or times, so it is in its form temporary not permanent, and it is possible that it is “specific to his time or the owner who worked with it, or specific to any condition,” or otherwise.

And the third category

is that which is not proven from the first people that they acted upon it, as it is more severe than what came before it.

What the early predecessors were upon is the “Sunnah and the Reputable Command.”

Al-Shatibi holds that the “work” of one of the two contradictory hadiths is “evidence that it abrogates the other.”

And here he mentioned the words of Ibn Shihab Al-Zuhri: The jurists are ignorant and incapable of knowing the hadith of the Messenger of God, may God bless him and grant him peace, who copied it and copied it.

Then Al-Shatibi added: “And when Malik took what the people owed and discarded what else, the transcriber of the abrogated became clear to him on Yusr.”

We point out here that the concept of abrogation - according to Al-Zuhri and according to Malik bin Anas - is not the late fundamentalist concept, but rather includes every deviation of the text from its apparent meaning.

It was also set by scholars, led by Shatby.

Al-Shatibi here clarifies two methodological matters adopted by Imam Malik:

Classifying the actions of the Prophet into what is a Sunnah and what is not (that is, to what is legislation and what is not legislation), based on the criterion of whether they agree with civil action or not.

Considering the violation of these behaviors for civil action as evidence that they are “copied” in the general sense we referred to.

We conclude from this that if civil action is associated with a specific prophetic act, it is considered - according to this concept - a presumption that if it agrees with it it supports it more than it is from general legislation, and if it contradicts it it indicates - according to certain conditions - that it is not.

This prophetic behavior may be a means to a legitimate goal, which must be changed because it is no longer able to achieve that goal, and it may be a behavior that originated from the position of political responsibility (the station of the Imamate) and the interest required for it has ended, or it came from the state of mountain or customary or worldly interest, or Other places and conditions.

This behavior is then not useful for the religious legal ruling binding on the nation, but Muslims can devise other means and procedures that achieve the same legitimate purposes, without stagnation on the means that were achieved in the Prophet’s era.

We will see shortly examples of some of these types of jurisprudence of Imam Malik.

And the rulings contained in the prophetic texts that Imam Malik did not act upon, although many of them were based on the work of the people of Medina;

In fact, it also takes into consideration the various other methodological tools, foremost among them: opposing the apparent meaning of the Qur’an, analogy, or a definitive origin [18].

This has been the subject of constant debate among fundamentalists through the centuries.

Judge Abu Bakr bin al-Arabi al-Ma’afari (d. 543 AH) summarized this by saying: “If the news of one comes in opposition to a rule of Sharia, is it permissible to act upon it or not? Abu Hanifa said: It is not permissible to act upon it. In the matter, and it is well-known that he said - and on which the dependent is based - that if the hadith supported it by another rule, he said it, and if he was alone he left it” [19].

But it is more accurate to say that Malik adopts the various possible methodological tools, and some of them combine with each other, until he thinks most likely that the prophetic behavior is implemented or not.

Imam Malik bin Anas inaugurated - with this rich methodology that he adopted to deal with the prophetic text - a qualitative leap in the history of Islamic legislation, and in the history of the sciences of the Prophetic Sunnah in particular, and developed a flexible methodology in dealing with the actions of the Messenger, may God bless him and grant him peace, and he deserved that and rightly so. The title of "Commander of the Faithful in Hadith", which was given to him by a number of Salaf scholars.

He also crystallized the foundations of ijtihad that accompanies the reality movement and one of the important building blocks of Islamic renewal.

With an example, the article is clear

A number of contemporary researchers have traced the issues in which Imam Malik relied on the work of the people of Medina, and it appears from this that they are numerous and varied according to the criteria that we saw in Abu Ishaq al-Shatibi.

What concerns us - in this article - is to review some clear examples of Malik’s reliance on the work of the people of Madinah to divert the Prophet’s behavior from general legislation to something else[20].

Pricing

Imam Malik considered the pricing issue related to the imam’s diligence despite the well-known hadith in which the Messenger, may God’s prayers and peace be upon him, refused to intervene in determining the prices of commodities, saying: “God is the price-giver, the Bassett, the Provider, and I hope that I meet God and none of you asks me for an injustice.” In blood or money”[21].

When asked about pricing, Malik said: “If the imam rates them - as much as he can see from their purchase - there is nothing wrong with them, but I am afraid that they will rise from the market”[22].

And many prohibited pricing based on the hadith. Muhammad ibn Ibrahim al-Shawkani (d. 1250 AH) says: “The hadith – and what was mentioned in its meaning – was inferred on the prohibition of pricing and that it is unfair.”[23]

Al-Shawkani also responded to Malik’s diligence, saying: “It was narrated on the authority of Malik that it is permissible for the imam to quote, and the hadiths of the chapter respond to him”[24].

But others have gone to Malik's opinion;

This Ibn Taymiyyah makes the hadith in a special case, he says: “Whoever argues against the prohibition of pricing at all, according to the saying of the Prophet, may God bless him and grant him peace:

Taking a break in prayer at Imam Malik is not a Sunnah and is not recommended, despite the authentic hadith regarding this.

It is a light sitting that the worshiper sits in after completing the second prostration of the first rak’ah, and after completing the second prostration of the third rak’ah, before getting up to the next rak’ah.

2. Robbing the dead man

Malik narrated - in his Muwatta’ - on the authority of Abu Qatada, who said, may God’s prayers and peace be upon him, in one of the battles: “Whoever kills a dead person - for whom there is evidence - then he has to plunder it”[26];

And plunder is what a warrior soldier has of weapons, luggage, clothes, and others.

Malik said: “No one can do that without the permission of the imam, and that cannot be done by the imam except on the basis of ijtihad”[27].

This is what Shihab al-Din al-Qarafi expressed by saying that Malik’s doctrine is that “this is the behavior of the Prophet, may God bless him and grant him peace, to lead”[28].

The Shafi’i scholar Ibn Daqiq al-Eid (d. 702 AH) compared the opinion of Malik and al-Shafi’i on the issue;

He said: “Al-Shafi’i sees the killer’s entitlement to robbery as a legal ruling, (…) Malik and others believe that he does not deserve it by Sharia, but rather deserves it by the imam’s disbursement to him due to consideration”[29].

Ibn Daqiq al-‘Eid set the Prophet’s, may God’s prayers and peace be upon him, disposition of the Imamate in return for his disposition according to Sharia.

3. Break session:

The sitting of rest in prayer with Imam Malik is not Sunnah and is not recommended, despite the arrival of the authentic hadith to that.

The basis for this according to Malik is that the Messenger, may God’s prayers and peace be upon him, did it when “the movement of his limbs became heavy due to the height of his age”, so it is a behavior that is “normal and not legitimate”[30].

Many favored the ijtihad of Imam Malik, including Ibn Qayyim al-Jawziyya, who says: “There is no doubt that he, may God’s prayers and peace be upon him, did it, but did he do it as one of the ways of prayer and its forms, such as slander and other things, or for a need when he was older and meat took him? This second showed…”[31] .

4. Lying down after the two rak’ahs of Fajr:

It was proven on the authority of Aisha, the Mother of the Believers, that when the Prophet, may God bless him and grant him peace, prayed the two rak’ahs of Fajr, he would lie on his right side [32];

So a group of scholars - led by Imam al-Shafi’i - held that lying down after the two rak’ahs of Fajr is a sunnah that is desirable to do, but Imam Malik and others argued that this bedtime was only done by the Prophet, may God bless him and grant him peace, to rest from the fatigue of standing, so they hated it and did not make it a Sunnah.

The Malikis narrated that Imam Malik said: Whoever does it is a relief, there is nothing wrong with that, and whoever does it is Sunnah and worship, there is no good in that [33].

The Maliki Hanafis agreed in this course, which was expressed by the imam of the Hanafis in his time, Ibn Abdeen (d. 1252 AH) after presenting the evidence of each party, and he said: “The result is that he, peace and blessings be upon him, was lying down in his house for rest, not for legislation”[34].

The hadith is correct, but the evidence for Malik and Abu Hanifa suggest that it is a human mountain act of the Messenger, may God bless him and grant him peace, and not general legislation.

5. Stand still:

And it was proven on the authority of Abu Hurairah who said: The Messenger of God, may God bless him and grant him peace, forbade a man to put on shoes while standing[35].

Malik was asked about wearing shoes while standing, and he said, "There is nothing wrong with that."

Abu al-Walid Muhammad Ibn Rushd (the grandfather) explained this saying that the prohibition has no effect except because of “what is feared that the doer will fall if he stands on one leg” while he is wearing the other.

If the Muslim is safe from the evil that results from him and it is decreed for him, “It is permissible for him to do it, and there is no harm in it.”

Then Ibn Rushd said: “It is a prohibition of literature and guidance for this reason” [36].

This type of prohibition in the legal texts has been made clear by the fundamentalists that it is a prohibition for a worldly interest and not for a religious one [37], and therefore it is not called a sunnah or legislation, and it is not said that it is mustahabb [38].

6. Embracing the Coming of Travel:

Malik did not take into account the hadith of Abdullah bin Omar that Jafar bin Abi Talib, when he returned from the Abyssinian emigration, was embraced by the Messenger of God, may God’s prayers and peace be upon him, and kissed between his eyes [39].

He considered that behavior specific to Jafar, and he hated men hugging and kissing between the eyes.

Imam al-Hafiz Sufyan bin Uyaynah (d. 198 AH) discussed him when he met him. Malik shook hands with him, saying: “O Abu Muhammad, if it wasn’t for it, we would have embraced you.” Sufyan said: He embraced better than you and the Prophet, peace be upon him. Malik said: Ja’far. He said: Yes, he said. Malik: “This is a special hadith, O Abu Muhammad, and it is not general.”[40]

Malik relied on that on the fact that this behavior was contrary to the work of the people of the city.

He made this clear when he was asked about the two men embracing if one of them came from a journey, and he said: “This is not the work of people.”[41]

These are examples of prophetic actions that Imam Malik did not act on because they contradicted the work of the people of Medina, or a fixed legal rule, or other evidence of the Sharia, and diverted them from general legislation to the disposition of the leadership, or the imam, or the worldly guidance, or the disposal of a person.

Thus, he laid the foundations for distinguishing between prophetic actions on the basis of their legislative significance.

It is not important here to be decisive in these prophetic actions and in the face of their issuance from the Prophet, may God’s prayers and peace be upon him, but the important thing is to perceive the approach taken by Imam Malik to understand and interpret them, the interpretation most consistent in his opinion with the Sharia and its purposes.

It is noticeable in the texts of the scholars - whose sayings we have mentioned - that they do not consider the Prophet’s behavior that is not followed by a Sunnah or legislation, which is a matter mentioned by many of them in their explanation of dozens of Prophetic behaviors.

Objections and interactions

The approach of Imam Malik bin Anas in dealing with the hadiths of the Prophet - according to the mentioned method - occupied the scholars of Islam, ancient and modern, between agreeing and opposing.

He was not spared criticism during his life and after his death.

This is the habit of people with major scientific innovations.

Among the first to criticize him in his life was Imam Al-Hafiz Al-Layth bin Saad (d. 175 AH) in a famous letter, and Malik answered him in another letter[42].

And we read in both letters of great knowledge and literature and high morals what befits great imams.

And Ibn Abd al-Barr al-Nimri (d. 463 AH) narrated on the authority of al-Layth ibn Saad that he said: “I counted about Malik ibn Anas seventy issues, all of which are in contradiction to the Sunnah of the Prophet, may God bless him and grant him peace, from what Malik said in his opinion.”[43]

Ibn Abd al-Bar commented on that, saying:

Not one of the nation’s scholars proves a hadith from the Messenger of God, may God bless him and grant him peace, and then rejects it without claiming that it was abrogated by an effect like it, or by consensus, or by an act whose origin (i.e., the origins of his doctrine) must be followed, or a challenge to its chain of transmission;

And if someone did that, his justice would fall away, let alone be taken as an imam, and the name of immorality would obligate him.”

Muhammad bin Idris al-Shafi’i (d. 204 AH) dictated his letter entitled: “The difference of Malik and al-Shafi’i, may God be pleased with them,” in which he accused Malik of turmoil in taking the news of the one, and he agreed with him once and disagreed with him on another, and criticized his taking the work of the people of Medina in exchange for the hadith;

He says: “The hadith on the authority of the Prophet, peace and blessings be upon him, is proven even if it is not acted upon after him, as the narration of the Messenger of God, may God bless him and grant him peace, dispenses with anything else.”[44] And Malik was accused - even if he did not name him - in some places of leaving the Sunnah.

But the whole book is a summit in the literature of disagreement and respect for the violator, how Malik is his teacher and sheikh, and he praised him a lot.

And what many blame on Imam Malik is that he left the work of the hadith that he himself narrated on the authority of Nafi’ on the authority of Ibn Umar with a raised wording: “The two who sold each one of them with the option of their owner as long as they did not separate, except the sale of the option”[45];

Malik said after narrating the hadith: “There is no known limit for this, and there is no established order in it.”

Criticism of this reached great intensity in his life.

A man asked him: Why did you narrate the hadith of “selling by choice” in Al-Muwatta’ and did not act upon it?

Malik said: Let an ignorant person like you know that I have a knowledge that I have left!

And another said to him: O Abu Abdullah, did you know the hadith of “the sale with the option”?

Malik said to him: Yes, and you are playing with the boys in Al-Baqi' [46]!

However, the most severe reactions came from another scholar in Medina, Ibn Abi Dhi’b (d. 159 AH);

When he was told that Malik did not take this hadith, he said: “Your owner will be repented, if he repents, otherwise his neck will be slashed.”[47]

Shams al-Din al-Dhahabi (d. 748 AH) quoted his words, then cited the words of Ahmed bin Hanbal (d. 241 AH) on the authority of Ibn Abi Dhi’b: “He is more pious and I say - opening the thousand and the silence of the qaf and the opening of the waw - with the truth from Malik.”

Which is what Al-Dhahabi commented on after that - justifying Imam Malik - by saying: “If he was pious - as he should - he would not have said this ugly speech about a great imam, because Malik did not act on the apparent meaning of the hadith because he saw it abrogated. Until they separate” on the pronunciation of the offer and acceptance, so your owner in this hadith - and in every hadith - will have a reward and must, and if it is hit, another reward will increase (...)”[48].

We have shown - in another place - our opinion of the correctness of Malik's diligence in many of the examples we reviewed [49], in which Malik did not act on the narrated hadith in return for the evidence that he considers to be a distraction from general legislation, especially those related to economic and commercial transactions.

This approach and its impact on understanding the texts of the Prophet’s Sunnah may be one of the reasons that made Taqi al-Din Ibn Taymiyyah (d. 728 AH) decide elsewhere that “(…) the people of the city are the most sound of the people of the cities in terms of narration and opinion” [50], and that “(…) the origins of Your owner in sales is better than other assets.”[51]

Al-Qarafi’s creativity in classifying prophetic behaviors

In the seventh century of immigration, the Maliki jurist and fundamentalist with the inimitable mind Shihab Al-Din Ahmed bin Idris Al-Qarafi (d. 684 AH) created an accurate classification of the Prophet’s actions, and explained with it a number of Malik’s jurisprudence in which the work of the hadith is left for one or more of the reasons we mentioned.

In that, he developed a rule that his teacher and sheikh briefly mentioned, Al-Izz bin Abdul Salam (d. 660 AH) in his book “The Rules of Judgment in the interests of the people.”

Al-Qarafi divided the actions of the Prophet in terms of their legislative significance into actions emanating from the Messenger, may God bless him and grant him peace, from the stations of the message, or fatwas, or the judiciary, or the Imamate.

He explained the impact of this on the understanding of a number of prophetic texts.

Al-Qarafi considers knowing the place from which the prophetic behavior originates as necessary for the jurisprudence of the hadiths of the Prophet as sound jurisprudence.

He has a great source of knowledge and a good understanding of the mujtahids.

After reviewing examples that explain the impact of the difference in the application of the rule in the scholars’ understanding of some of the Prophet’s actions, he says: “The analogues of this issue are many in the Shari’a.

He considers the rule of distinction between behaviors an "honorable rule", "a lot of things come out of Sharia"[53].

He also considers it one of the legal principles and a law that applies to the various actions of the Prophet.

After he listed the types of his behavior, may God’s prayers and peace be upon him, and the differences between them, he said: “On this law and these differences, whatever comes to you from this section will be extracted from his behavior, may God bless him and grant him peace.

لقد دشَّن القرافي بعمله مرحلة جديدة في التعامل مع التصرفات النبوية والتمييز بين أنواعها، وبقي مَن بعده عالةً عليه فيها بدون منازع. فسرعان ما نقلت كتب الأصول والقواعد من مختلف المذاهب الفقهية في القرنين المواليين (أواخر القرن السابع الهجري وطيلة القرنين الثامن والتاسع) كلامه -مختصرا أو مفصلا (بالحرف أو بالمعنى)- واعتمدته، لكنها قليلا ما تزيد على تحقيقاته وعلى الأمثلة التي استدل بها[55].

وأحيا كثير من العلماء في القرن الرابع عشر الهجري عملَ القرافي، وعرّفوا به واعتمدوه. وكان محدِّث مصر الأستاذ أحمد محمد شاكر (ت 1377هـ) قد اقترح -في حديث له عن تقنين الشريعة– إنشاء لجنة فقهية تتكلف بالتقنين، ترأسها لجنة عليا تقوم -من بين ما تقوم به- بدراسة مسائل أصول الفقه. وجعَل من بينها أن "تحقِّق القاعدةَ الجليلة الدقيقة، التي لم يحققها أحد من العلماء المتقدِّمين فيما نعْلم؛ إلا أن شهاب الدين القرافي أشار إليها إشارة موجزة في الفرق السادس والثلاثين من كتاب الفروق". ثم ذكر قاعدة التمييز بين تصرفاته صلى الله عليه وسلم وقال: "وهو بحث أساسي لدرْس الأحاديث والاستدلال بها درْسا صحيحا، فيُفرَّق بين الأحاديث التي لها صفة العموم والتشريع، وبين الأحاديث التي جاءت عن رسول الله تصرُّفاً منه بالإمامة، فليست لها صفة العموم والتشريع، بل المرجع في أمثالها إلى ما يَأمر به الإمام من المصالح العامة، وبين الأحاديث في أقضية جزئية، تصرُّفا منه صلى الله عليه وسلم بالقضاء، فيكون الحديث عن قضية بعينها، يُستنبط منه ما يسمى في عصرنا «المبدأ القضائي»"[56]. فجعل أحمد محمد شاكر التصرفات بالإمامة وبالقضاء تصرفات غير تشريعية، ما دامت "ليست لها صفة العموم والتشريع".

وهذه الدعوة -من هذه القامة الشامخة في علم الحديث- هي من بين ما جعلني شخصيا أهتم بالموضوع، وأحاول التوعية بتأثيره على فهم السنة النبوية، كما اهتمّ به عدد متزايد من العلماء والباحثين في العقود الأخيرة.

ختام

إن كثيرا من تخبطات العقل المسلم اليوم وتشديداته في الدين ناتج عن هذا الخلط بين مستوييْ التشريع الديني والتصرف الدنيوي من تصرفاته عليه الصلاة والسلام، مما أوقع جماهير من المسلمين في الحرج الشديد.

وقد رأينا أن ذلك التمييز يخضع لدى الإمام مالك بن أنس لمنهج دقيق وقواعد واضحة، واستقراء للقرائن المحيطة بالنص النبوي، وليس خاضعا للهوى أو العشوائية. ومن الضروري اليوم اعتبار المقام الذي يصدر عنه التصرف النبوي -تشريعيا أو غير تشريعي- أمرا مركزيا في تصنيف وفهم السنة النبوية، والعمل على الاستمرار في تطوير قاعدة التمييز بين التصرفات النبوية نظرا وتطبيقا.

المصادر

[1] – المنهج الوسط في التعامل مع السنة النبوية، 27 – 44

[2] – أخرجه بهذا اللفظ مسلم في صحيحه (كتاب الحج/ باب استحباب نزول المُحَصِّب …).

[3] – أخرجه مسلم (كتاب الحج/ باب استحباب نزول المُحَصِّب…)، والتحصيب: النزول بالمُحَصِّب، وهو الشِّعْب الذي مخرجه إلى موضع الأبطح بين مكة ومنى.

[4] – زاد المعاد في هدي خير العباد، 3/ 294.

[5] – انظر المزيد من التوضيح في: المنهج الوسط في التعامل مع السنة النبوية، ص 33 – 41. والعلماء الذين اعتمدوا تعريف السنة لدى المحدِّثين، من الطبيعي أن يتحدثوا عن سُنن تشريعية وسنن غير تشريعية، فالخلاف اصطلاحي غير ذي تأثير في جوهر الموضوع.

[6] – شرح علل الترمذي، ص 29

[7] – الفصول في الأصول، 3/ 113

[8] – الفصول في الأصول، 3/ 121

[9] – المجموع شرح المهذب، 1.64/

[10] ـ ترتيب المدارك، 1/ 186.

[11] ـ ترتيب المدارك، 1/ 45.

[12] – بداية المجتهد، 1/ 305.

[13] ـترتيب المدارك، 2/73.

[14] نفسه.

[15] – المدونة، 2/ 118.

[16] – بداية المجتهد، 1/ 174.

[17] ـ الموافقات، 3/ 56 ـ 75

[18] – أطال الشاطبي في مناقشة حجية خبر الآحاد إذا خالف أصلا مقطوعا به، انظر مثلا: الموافقات: 3/ 189 وما بعدها.

[19] – القبس، 2/ 812

[20] – انظر أيضا كتابنا: جهود المالكية في تصنيف التصرفات النبوية، ص 41 – 54

[21] – أخرجه أبو داود (كتاب البيوع/ باب في التسعير) والترمذي (كتاب البيوع/ باب ما جاء في التسعير) وقال: حسن صحيح، وابن ماجه (كتاب التجارات/ باب من كره أن يسعر)، وصححه الألباني في "صحيح الجامع الصغير": ٢/١٣٥، وفي "غاية المرام": ١٩٤.

[22] ـ المنتقى لأبي الوليد الباجي، 5/ 18.

[23] ـ نيل الأوطار، 4/ 248

[24] ـ نيل الأوطار، 6/ 600

[25] ـ مجموع الفتاوى (28/95)، وانظر: الطرق الحكمية (1/374).

[26] ـ الموطأ (الجهاد/ باب ما جاء في السلب في النقل)

[27] ـ وانظر نحوه في جواب لمالك في المدونة الكبرى، 2/ 29 .

[28] ـ الإحكام، ص 117.

[29] – إحكام الأحكام شرح عمدة الأحكام، 2/ 307

[30] – أحمد زروق (ت 899ه): شرح متن الرسالة، 1/227

[31] – كتاب الصلاة،

[32] – أخرجه البخاري (كتاب التهجد/ باب الضجعة على الشق الأيمن بعد ركعتي الفجر) …………………..

[33] – أبو الوليد الباجي: المنتقى 1/ 215

[34] – رد المحتار على الدر المختار (2/ 20)

[35] ـ أخرجه الترمذي (كتاب اللباس عن رسول الله صلى الله عليه وسلم، باب لبس النعل قائما) عن أبي هريرة وعن أنس بن مالك، وابن ماجه (كتاب اللباس، باب نهي رسول الله صلى الله عليه وسلم أن ينتعل الرجل قائما) عن ابن عمر وأبي هريرة، وأبو داود عن جابر بن عبد الله.

[36] ـ البيان والتحصيل، 18/50 و437.

[37] – انظر مثلا: أبو حامد الغزالي، المستصفى، 2/69 ـ بدر الدين الزركشي: البحر المحيط، 2/ 356، تاج الدين السبكي، الإبهاج، 2/17.

[38] – انظر مثلا: أبو بكر بن العربي: المسالك في شرح موطأ مالك، 7/ 350، محمد رشيد رضا: تفسير المنار، 9/ 858 – 859، و و634.

[39] ـ أخرجه الحاكم في المستدرك (كتاب التطوع/ باب صلاة التسبيح)، وصحح إسناده ووافقه الذهبي، وأخرجه أبو داود مرسلا بمعناه (كتاب الأدب/ قُبلة ما بين العينين).

[40] ـ البيان والتحصيل، 17/ 88.

[41] ـ البيان والتحصيل، 18/ 205.

[42] – الرسالتان رواهما يحيى بن معين في كتابه "التاريخ"، 4/ 487 – 501

[43] – جامع بيان العلم وفضله، 1/ 148

[44] – الشافعي: الأم، كتاب اختلاف مالك والشافعي، 7/ 330.

[45] – موطأ مالك (كتاب البيوع/ باب بيع الخيار) بهذا اللفظ، كما أخرجه البخاري ومسلم بألفاظ مختلفة.

[46] – انتصار الفقير السالك لترجيح مذهب الإمام مالك لشمس الدين الراعي الأندلسي (ت 853هـ)، ص 225.

[47] – أحمد بن حنبل: العلل ومعرفة الرجال، 1/ 539

[48] – سير أعلام النبلاء، 7/ 142 – 143

[49] – جهود المالكية في تصنيف التصرفات النبوية، ص 41 وما بعدها.

[50] – مجموع الفتاوى، 20/ 316 و 320، وانظر: 20/ 311.

[51] – القواعد النورانية، ص 172.

[52] – الإحكام، ص 119.

[53] - Al-Thakhira, 8/213-214

[54] - Differences, 1/109.

[55] - See: Saad Al-Din Al-Othmani: The Malikis’ Efforts to Classify the Prophet’s Actions, pp. 118-124, Political Prophetic Behaviors, pp. 48 and 140-142

[56]- Ruling of ignorance, pp. 129-130.