Twenty-eight years after Abu Hanifa, Malik ibn Anas, the founder of
the Malikite school, died at Medina. In many points his situation was
precisely opposite to that of Abu Hanifa, and yet his results were
very similar. He was a working jurist, in practical touch with actual
life; he was in the centre of the tradition of the usage of the
Prophet, in the line, one might say, of the apostolic succession. He,
therefore, used traditions much more generally than did Abu Hanifa,
and when he, under pressure, took refuge in opinion, he certainly felt
that he, under his conditions, had a better right to do so than any
outsider. But two of his principles marked a distinct advance and
showed that he was no mere traditionalist. For one, he laid down the
conception of public advantage (_istislah_); when a rule founded on
even a valid analogy would work a general injury it was to be set
aside; justice must not be overcome by logic. And, for the other, he
laid stress on the conception of the agreement (_ijma`_), an idea
which was to have indefinite importance in the future. When the
surviving companions of the Prophet, after his death, agreed upon any
point as belonging to their store of tradition and experience, their
agreement was accepted as final. In the first instance they agreed
that such had been the statement of the Prophet. That easily passed
over into an agreement that such was the true Moslem view, and finally
into an acceptance of the principle that the Moslem Church, when
unanimous, could formulate truth--practically as in the canon of
Vincent of Lérins, _Quod semper, quod ubique, quod ab omnibus_. But
such a broadly catholic position was still in the future, and for
Malik, juristic agreement meant the agreement of Medina, though there
are signs that he permitted the same latitude to other places also. It
was a way of allowing for local conditions rather than of reaching the
voice of the Church. His law book, the _Muwatta'_, the earliest in our
possession written by the founder of a school, has already been
mentioned. It is a collection of about seventeen hundred traditions of
juristic importance, arranged according to subject, with appended
remarks on the usage of Medina and on his own view of each matter.
Public-domain text, read in full here on John Shaqi.
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