The Third Source: Fatwas of the Companions

In his early studies Malik concentrated on learning the cases of the Companions, their fatwas, and their judgements in respect of the questions which he concerned him. We have already seen how eager he was to learn the fatwas of 'Abdullah ibn 'Umar from his client Nafi'. He used to lie in wait for him when he went out so that he might ask him about the statements of 'Abdullah. He also was eager to learn the cases of 'Umar ibn al-Khattab, may Allah be pleased with him. He learned the fiqh of the seven fuqaha' of Madina. They transmitted the disagreements, perceptions, fatwas and decisions of the Companions as well as the hadiths of the Messenger of Allah, may Allah bless him and grant him peace.

The knowledge which he was taught and which he mastered and on which he based himself and on the basis of which he made deduction and according to which he proceeded with the implementation of the hadiths of the Messenger of Allah was the decisions and fatwas of the Companions.

That is why the fatwas of the Companions occupied a major place in Malik's deduction. He took them and did not infringe them. He accepted the position of the People of Madina because the Companions had been there, as he mentioned in his letter to al-Layth.

"Know, may Allah have mercy on you, that I have been informed that you give people fatwas which are contrary to what is done by our community and in our city. You are Imam and have importance and position with the people of your city and they need you and rely on what they get from you. Therefore you ought to fear for yourself and follow that whose pursuit you hope will bring you salvation.

"Allah Almighty says in His Mighty Book, 'The outstrippers, the first of the Muhajirun and the Ansar.' (9:100) Allah Almighty further says, 'So give good news to My slaves, those who listen well to what is said and then follow the best of it.' (39:18) It is essential to follow the People of Madina. The Hijra was made to it, the Qur'an was sent down in it, and the halal was made halal and the haram was made haram there. The Messenger of Allah was among them and they were present when the Revelation was revealed. He commanded them and they obeyed him. He made the Sunna for them and they followed it until Allah caused him to die and chose for him what is with Him. May the blessings of Allah and His mercy and blessing be upon him.

"Then after his death, the Muslims followed those from among his community who were given authority after him. When something happened to them that they knew how to deal with, they carried it out. If they had no knowledge on the subject, they asked about it and then they followed the most best line that they could deduce by ijtihad. In this they were helped by having been until recently in personal contact (with the Prophet). If someone opposed them or proposed an alternative view which was stronger and better than the ruling they had made , they left the former and acted upon the latter."

You see from this clear statement that is is necessary to accept the statement of the Companion. It contains a clear indication of the motive which moved him to accept their statements: they were first outstrippers among the Muhajirun and Ansar and that Allah praised those who follow them in the best. There is no doubt that accepting their statements is to follow them. That is praised in the Noble Qur'an and they were close in time to the Prophet. They were present when the Revelation was being received and the Prophet commanded them and they obeyed him. He made a sunna for them and they followed it. They were the people with the most knowledge of this deen and of the sunnas of the Noble Prophet. Accepting their statement is to accept their sunna.

Malik realised that the Sunna was to be found in what the Companions had. He saw that when 'Umar ibn 'Abdu'l-'Aziz wanted to spread knowledge of the Sunna, he commanded that the decisions and fatwas of the Companions in Madina be collected. Malik used to relate what this upright khalif said on this subject.

"The Messenger of Allah laid down a sunna and those in command after him laid down sunan. Accepting and acting on that is tantamount to following the Book of Allah, the completion of obedience to Allah, and firmness in the deen of Allah. No one after them can change the Sunna or is permitted to take on anything which opposes them. Whoever is guided by them is guided. Whoever seeks help by them is helped. If anyone leaves them to follow a way other than that of the believers, Allah will assign him what he has turned to and Hellfire will roast him. What an evil return!"

Malik admired those words and clung to them, holding that they embodied the perfect definition of the Sunna. He accepted that. The Muwatta' contains the fatwas of the Companions alongside hadiths of the Messenger of Allah, may Allah bless him and grant him peace. So he recorded the fatwas and decisions of the Companions as he recorded the statements of the Prophet, may Allah bless him and grant him peace, and considered them to be part of the Sunna.

Someone who reads the Muwatta' will not find any difficulty about the transmission of examples of the fatwas of the Companions which are related and recorded in the Muwatta' and accepted. If you turn its pages, you must see the fatwas of the Companions accepted. A few examples will illustrate this:

1) There is what has come about a loan in which it is made a precondition that the place where it be repaid is a country other than that in which the contract was made. The Muwatta' says: Malik reported that it had reached him that 'Umar ibn al-Khattab heard about a man who lent some food to a man on the basis that he would give it back to him in another country. 'Umar ibn al-Khattab disliked it and said, "Where is the transport?" (31.44.91) You see from this that Malik forbade that type of precondition based on this fatwa of 'Umar.

2) Another instance is a loan is when the lender imposes a precondition that he will get more than what he lent. We read in the Muwatta': "Malik related that he had heard that a man came to 'Abdullah ibn 'Umar and said, 'Abu 'Abdu'r-Rahman, I gave a man a loan and stipulated that he give me better than what I lent him.' 'Abdullah ibn 'Umar said, 'That is usury.' 'Abdullah said, 'Loans are of three types. A free loan which you lend by which you desire the pleasure of Allah, a free loan which you lend by which you desire the pleasure of your companion, and a free loan which you lend by which you take what is impure by what is pure, and that is usury.' He said, 'What do you order me to do, Abu 'Abdu'r-Rahman?' He said, 'I think that you should tear up the agreement. If he gives you less than what you lent him, take it and you will be rewarded. If he gives you better than what you lent him of his own good will, that is his gratitude to you and you have the wage of the period you gave him the loan." (31.44.92)

Malik took this view. So if anyone made a precondition in a loan that he would get more than what he lent or better than it, the loan was invalid and he should take what he gave. It is better to let the term finish and take it at the end of it and the precondition is invalid.

3) Another instance concerns the gift which is invalid if the recipient dies before it is received or the giver falls ill before it is taken. In that he accepted the fatwa of Abu Bakr and 'Umar which comes in the Muwatta': "Malik reported from Ibn Shihab from 'Urwa ibn az-Zubayr that 'A'isha, the wife of the Prophet, may Allah bless him and grant him peace, said, 'Abu Bakr as-Siddiq gave me some palm-trees which produced twenty awsaq from his property in al-'Aliyya. When he was dying, he said, 'By Allah, little daughter, there is no one I would prefer to be wealthy after I die than you. There is no one it is more difficult for me to see poor after I die than you. I gave you some palm-trees which produce twenty awsaq. If you had cut them and taken possession of them, they would have been yours, but today they are the property of the heirs who are your two brothers and two sisters, so divide them according to the Book of Allah.'" (36.33.40)

We also read: "Malik reported from Ibn Shihab from 'Urwa ibn az-Zubayr ... that 'Umar ibn al-Khattab said, "What is wrong with men who give their sons gifts and then keep hold of them? If the son dies, they say, "My property is in my possession and I did not give it to anyone." But if they themselves are dying, they say, "It belongs to my son. I gave it to him." If anyone gives a gift and does not hand it over to the one to whom it was given, the gift is invalid." (36.33.41)

Malik accepted these two reports.

Malik often accepted the fatwa of the Companions and considered their fatwas to be part of the Sunna. According to ash-Shatibi, the Imam of the Sunna was well known in his lifetime as strongly favouring this position. He said in al-Muwafaqat:

"Malik often used this reason in relation to the Companions or the one who is guided by their guidance or takes on their sunna who Allah makes an example for others. The contemporaries of Malik followed his traditions and imitated his actions seeking the blessing of following someone whom Allah and His Messenger have praised and made them and those who follow them, may Allah be pleased with them, the Party of Allah. Allah Almighty says, "The Party of Allah, they are the winners." (58:22)

This was the way Malik viewed the fatwas and decisions of the Companions. He and Imam Ahmad are probably the Imams who held most strongly to the fatwas of the Companions and were most eager to learn them and take them as a basis for other decisions and fatwas and it was they who did that most often. They accepted the statements and fatwas of the Companions without limitation or precondition regarding their number, their attributes, their actions, or the type of opinion related from them. When they disagreed, they chose the majority position and that which was acted upon by the community as a whole.

Even if the Imams of the people of the four schools agree on this question, the amount of it in their fiqh differs. Malik and Ibn Hanbal rely on it a lot so that they consider it to be a pillar of their ijtihad and were trained in it in their juristic studies. Abu Hanifa and ash-Shafi'i are less than that in their acceptance, even those the methods are similar and the direction on the whole the same.

Although the four Imams accepted the statements of the Companions, there are those who do not accept the statements of Abu Bakr and 'Umar. Others do not accept the statements of the four rightly-guided khalifs. Whatever the situation of those later ones, the early and later ones among the Followers and those who came after them feared to oppose the Companions. When you examine most of what you find of this sort in the sciences of the dispute between the Imams and their schools, you will find that they bolster their schools by mentioning those of the Companions who held their positions. That is only because they they and their opponents esteemed them and the strength of their source, and the greatness of their position in the Shari'a.

Malik and the other Imams of the four schools accepted the statements of the Companions and sometimes proclaimed that their fatwas are based on the fatwas of the Companions, but we want to pose a question: Did Malik accept the statement of the Companions as evidence and as one of the branches of the Sunna because the statement of the Companions is either by transmission from the Messenger and thus is sunna without a doubt, or it is by the ijtihad of opinion, and in their ijtihad they were closer to the deen and Sunna since they were present at the revelation, and so even if it is nor explicit Sunna, it is connected to the Sunna?

Before we answer this question, we state that ash-Shafi'i, the student of Malik, believed that following the Companions when they agreed was evidence of consensus. If they disagreed, then one can chose of their statements that which he thinks is closer to the Sunna or agrees with analogy. If he only prefers one statement, he follows it by imitation. He used to say, "Their opinions are better for us than our opinions for ourselves." He did not accept the statements of the Companions as being sunna, but on the basis of imitating them and preferring some of their positions over others because that is the safest course.

Abu Hanifa's opinion is deduced by the fuqaha' of his school and there are two interpretations. Abu Sa'id al-Baradha'i transmitted from al-Bazdawi in his Fundamentals: "Imitation of the Companions is a duty for which analogy is abandoned. We found our shaykhs doing this." So al-Baradha'i reported that his shaykhs, including Abu Hanifa, imitated the Companions, and the statements transmitted from Abu Hanifa indicate that.

Al-Karkhi, one of the Imams of deduction in the Hanafi school, relates that accepting the statement of the Companion is part of the Sunna. That is why he only takes it in what is not perceived by analogy, like the miqats and the like which come by transmission. So the Companion is followed in this case since his statement is transmission and not opinion. On that basis, his statement is accepted, not simply by imitation, but because it is sunna.

It is clear from looking at the principles of the Malikis and the Muwatta' that Malik, like Ahmad ibn Hanbal, accepted the statements of the Companions as a source of fiqh and as having authority and constituting one of the branches of the Sunna of the Prophet. That is why to know them is to know the Sunna and to go against them is innovation. Ibn al-Qayyim clearly states in I'lam al-Muwaqqi'in that it is part of the Sunna.

When a Companion makes a statement or gives a judgement or a fatwa, it may stem from discernment which he has and we do not, or from discernment in which we share. As for what is particular to him, it is likely that he heard it directly from the mouth of Prophet, may Allah bless him and grant him peace, or from another Companion narrating from the Messenger of Allah. The knowledge they possessed and to which we do not have access is more than will ever be known. None of them related all that they heard. Where is what Abu Bakr as-Siddiq, 'Umar al-Faruq and the other great Companions, may Allah be pleased with them, heard, compared to what they relate?

There are not even a hundred hadiths related from the Siddiq of the Community, despite the fact that he was not absent from the Prophet, may Allah bless him and grant him peace, in any of his battles and accompanied him from the time of his prophetic mission, or indeed, even before that time, until his death. Abu Bakr was the most knowledgeable of the community about him, may Allah bless him and grant him peace, and about his words, actions, guidance and conduct. The same applies to the majority of the Companions: the amount that they transmit from the Prophet is very little indeed in comparison with what they actually heard and witnessed from him. If they had related all that they heard and witnessed, it would have been many times more than what Abu Hurayra transmitted. He was only a Companion for about four years and related a great deal from him.

The statement 'If the Companions had known anything about this matter...' can only be made by someone who does not understand the behaviour and states of people. They were in awe of transmitting from the Messenger of Allah, may Allah bless him and grant him peace, and attached great importance to it. They did not often do so, fearing to add to or subtract from his words.

Any fatwa which one of the Companions gave will be based on one of six foundations:

If the basis of the fatwa is any of the above five criteria, it is authoritative for us and must be followed.

This sixth aspect is a theoretical one and the possibility of its occurring is remote, especially in the case of the exalted Companions who transmitted the Islamic deen to the next generation. This excellent directive clarifies Malik's view in considering the statement of the Companion as an authoritative source and the fact that he accepted it as being part of the Sunna. It was not on the basis that it was imitation and simply following.

The difference between the two views has clear consequences, and so is necessary to examine it. Since Malik accepted the statements of the Companions as Sunna, it is possible that there would be some clashes with single traditions and he would prefer one over the other by various means of preference. If accepting them had been simply imitation, as ash-Shafi'i and Abu Hanifa do with some deductions, it would not be accepted except inasmuch as it is not sunna.

The first was the method of Malik, may Allah be pleased with him. This was one of the causes of the disagreement between him and his student ash-Shafi'i, as you will see in The Disagreement with Malik by ash-Shafi'i. It contains a clear statement about the questions in which Malik abandoned single traditions and accepted the statement of the Companion. Ash-Shafi'i criticised him for that and disagreed with him.

On the basis of this principle, Malik sometimes used to prefer the statement of the Companions over some hadiths, after comparing them. In some cases there were certain aspects of opinion, the practice of the people of Madina, statements of the people or the general bases of the Shari'a, which made the statement of a Companion preferable to an individual hadith.

In so doing, Malik did not prefer the statement of the Companion over the Sunna but rather in that instance it was the statement of the Companion in fact which constituted the Sunna. Because they differed in their conclusions he carefully compared them and ended by accepting one and rejecting the other. He did not reject a statement of the Messenger of Allah, may Allah bless him and grant him peace, for a statement of a Companion. He rejected one tradition from the Messenger for another which was more reliable and had a more truthful transmission.

Ash-Shafi'i disagreed with him in that method and said about it that he rejected the root by the branch and rejected the stronger for the weaker, but the clear position followed by Maliki fiqh is that it does not advance the statement of the Companion over the tradition of the Messenger as such. We seek refuge with Allah from that being the method of the Imam of the Abode of the Hijra and the shaykh of the hadith scholars of his generation. Rather the truth is what we mentioned, and it is that he considered the statement of the Companions as understanding which was received from the Messenger of Allah, may Allah bless him and grant him peace, and so it is true transmission when there is no doubt in its transmitters. Then it is measured against a report directly from the Messenger and so there is only comparison between two traditions from the Prophet, especially since he only took from the Companions who were with him over a long period.