Origin of Legal Principles: Malik As An Example
Methods of Usuli Derivation
There are methods of usuli derivation that are common among the different jurisprudential schools. These methods are not exclusive to any particular school; rather, they are pathways for derivation used by scholars of each school to understand, validate, and debate the principles of their respective Imams. Some of these methods include:
Explicit Reference:
This method involves the Imam explicitly stating that a certain principle is one of his foundational principles and It is divided into two categories:
1. Explicit
An example of this is Imam Malik explicitly stating that the practice of the people of Medina is a legitimate legal proof and a considered evidence, as mentioned in his letter to Al-Layth ibn Sa’d. This type is the highest rank, the most esteemed path, and the rarest. Its inclusion here involves some leniency.
2. Implicit
An example of this is Imam Malik’s statement about the equivalence between a woman’s life and a man’s in terms of injuries, based on the verse:
“And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation for him..” (Quran 5: 45).
From this reasoning, Ibn al-Qassar inferred that Imam Malik advocated for adhering to the Sharia of the prophets before us. However, many within the school do not consider this method as part of explicit mention, instead seeing it as derived through a different approach (1).
Second Method: Extraction (Dependent Relationships)
This method is divided into two categories:
1. Deriving a Principle from a Specific Case
An example is Ibn al-Qassar deriving Imam Malik’s position that a command implies immediate action from his statement on the immediacy of Hajj. Ibn al-Qassar said: “Imam Malik did not explicitly state that Hajj should be performed immediately, but his school indicates it should be immediate because the command implies immediacy” (2).
2. Deriving a Principle from Another Principle
This method involves deriving one principle from another, based on their relationship. It is further divided into three types depending on the relationship between the derived principle and the principle it is derived from:
The First Type: Dependent Relationship
An example is the principle of istihsan (juridical preference) being dependent on the principle of allowing the specification of a legal text’s underlying cause. There is debate over the validity of this type of relationship, as it is not universally accepted that advocating istihsan necessitates allowing the specification of the cause.
The Secomd Type: Stronger Implication Relationship
An example is that if one considers the implications of a description (mafhum al-sifah), they would consider the implication of a condition (mafhum al-shart) even more so, as it is agreed to be stronger than the description (3).
The Third Type: Necessary Consequence Relationship:
An example is that anyone who holds that a command implies immediacy must also necessarily hold that it implies repetition, due to the inherent logical connection between them (4).
Third Method: Analogical Reasoning Qiyas (Resemblance Relationships)
This relationship is one of similarities, not dependency! For instance, the ruling that the waiting period for a widow starts from the time of death or divorce, not from the time of knowing about it. Similarly, the agent’s dismissal takes effect upon the death of the principal or the dismissal notice, not from the time the agent learns about it (5).
The Fourth Method: Consensus within the School
The apparent agreement among the scholars of the school on a principle suggests that there must be a basis for it from the Imam, whether explicitly mentioned or not. This underscores the importance of ensuring accurate transmission and explicit citation. Some Maliki jurists, like Abu al-Walid al-Baji and al-Mazari, insist on this, while others rely on the precedents set by earlier scholars.
References
1. Imam Malik’s “Al-Muwatta,” 2/872, Book of Penalties: Chapter on Retribution for Killing, Hadith No. 2560. Hatim Bay: “Al-Tahqiq fi Masa’il al-Usul,” p. 71.
2. Ibn al-Qassar: “Al-Muqaddima fi al-Usul,” p. 231.
3. Hatim Bay: “Al-Tahqiq fi Masa’il al-Usul,” p. 47.
4. “Al-Usul al-Mutafaq alayha bayn al-Hanafiyya wa al-Malikiyya: Dirasa Ta’siliya Tatbiqiya,” p. 171.
5. Ibn Rushd al-Jadd: “Al-Muqaddimat al-Mumahhidat,” p. 58, First Edition, 1988, Dar al-Gharb al-Islami.
6. Hatim Bay: “Al-Tahqiq fi Masa’il al-Usul,” p. 71.