Introduction To The English Language Translation of The Recension of Ya Yā B. Ya Yā

Introduction to the English Language Translation
of the Muwaṭṭaʾ of Imam Mālik b. Anas,

Recension of Yaḥyā b. Yaḥyā
Mālik b. Anas, al-Muwaṭṭaʾ -- Recension of Yaḥyā b. Yaḥyā al-Laythī (d. 234/848), ed.
and trans. Mohammad Fadel and Connell Monnette (Cambridge, MA: Harvard Islamic
Legal Studies Program, Forthcoming)
Electronic copy available at: https://ssrn.com/abstract=3411857

Introduction to the Translation of the Royal
Moroccan Edition of the Muwaṭṭaʾ, Recension of
Yaḥyā b. Yaḥyā al-Laythī
Biography of Mālik b. Anas and His Place in the Sunnī Tradition

Mālik b. Anas, the author of the Muwaṭṭaʾ, lived through momentous
changes in early Muslim society. Born in 93/711 in Medina during the
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reign of the Umayyad caliph al-Walīd b. ʿAbd al-Malik (r. 86–96/705–715),
he witnessed the transformation of Islam from a primarily Arab religion
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into a cosmopolitan, multiethnic religion. By the time of his death in
179/795 during the reign of the fifth ʿAbbāsid caliph, Hārūn al-Rashīd (r.
170–93/786–809), the ʿAbbāsids had already been in power more than
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forty years after their successful overthrow of the Umayyads in 132/750.
With the rise of the ʿAbbāsids and the founding of their new, cosmopolitan
capital of Baghdad during the reign of their second caliph, Abū Jaʿfar
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al-Manṣūr (r. 136–58/754–775), the cultural center of gravity of the

Muslim world began to shift decisively from Medina in the Hijaz to Iraq
and the Muslim East. By Mālik’s death, Medina was no longer an important
center of learning, religious or otherwise, although it would remain central
to Muslims’ religious imagination and a site of pilgrimage. When Mālik was
still a youth, however, Medina was the undisputed cultural center of the
Muslim world, thus affording him the opportunity to learn from the most
important religious figures of the Umayyad period. His residence in Medina
also proved fortunate for his career as a teacher. Given Medina’s status
as a pilgrimage destination, Mālik taught scores of students from all over
the nascent Islamic empire, but especially those hailing from the regions
located to the west of the Hijaz—Egypt, North Africa, and Andalusia. Mālik
was known as a meticulous and scrupulous scholar for the care he took
in the transmission of the historical materials known as hadith. Ḥadīth
literally means “story” or “tale,” but in this case it refers generically to
narrative materials purporting to tell the story of the Muslim community.
The term would later come to be used almost exclusively to denote reports
of incidents that occurred during the lifetime of the Prophet Muḥammad,
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8 Al-Muwaṭṭaʾ
but at this early stage in Muslim history, it was used more broadly to
include any report about the community’s past. Because of the care with
which Mālik transmitted these materials and what appears to have been a
conscious decision on his part to transmit to students only what he deemed
the best-attested of the historical narratives that he had studied and
collected,1 he came to be considered an imām, an authority, in the science of
hadith (imām fī al-ḥadīth). However, Mālik was not only an authority on the
Muslim community’s history as documented in hadith. He was also deemed
an authority—an imām—on its law (imām fī al-sunna).
To appreciate Mālik’s stature as a scholar within the Sunnī tradition, it
is helpful to consider the number and identity of his students. According
to Umar Abd-Allah Wymann-Landgraf, none of the putative founders of the
other Sunnī schools of law had as many students from as many different
regions of the Islamic world as did Mālik. Although a majority of his students
hailed from Egypt, North Africa, and Andalusia, his students also came from
the Levant and Iraq and even as far east as Khurāsān. Uniquely in a culture
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that prized seniority, his study circle attracted more students who were
older than him than it did those who were his juniors.2
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A principal reason for Mālik’s fame as a legist was his book, al-Muwaṭṭaʾ.
Mālik’s Muwaṭṭaʾ constitutes the first authored treatise on Islamic law. Prior
to Mālik’s generation, Islamic law seems to have developed in the context of
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deliberations that took place in small gatherings of jurists. Although many

of these earlier juristic deliberations were preserved, either as handwritten
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notes or via oral transmission, the generations of Muslim scholars before

Mālik did not compose books of law. The Muwaṭṭaʾ, by contrast, represents
an attempt to conceive of the law as an entirety, and even though it is not
a comprehensive treatise, the structure and contents of the work clearly
indicate that Mālik thought of the law as an independent object of knowledge
that could be set out systematically in written form. Indeed, historical reports
indicate that Mālik spent years editing and revising his text, which resulted
in the transmission to posterity of numerous different recensions of the
Muwaṭṭaʾ.3 Many of these recensions are lost to history or have survived in
only fragmentary form. The recension of the Muwaṭṭaʾ that is translated here
is that of the Andalusian scholar Yaḥyā b. Yaḥyā al-Laythī (152–234/769–
839). Yaḥyā would have studied the Muwaṭṭaʾ near the end of Mālik’s life, and
accordingly, his recension represents the last, or almost the last, “version” or
1 Umar F. Abd-Allah Wymann-Landgraf, Mālik and Medina: Islamic Legal Reasoning in the For-
mative Period (Boston: Brill, 2013), 46.
2 Wymann-Landgraf, Mālik and Medina, 48.
3 Wymann-Landgraf, Mālik and Medina, 60 (noting that Mālik authorized as many as
seventy-three different recensions of the Muwaṭṭaʾ and that more than one thousand stu-
dents transmitted the text).

Introduction to the Translation of the Royal Moroccan Edition 9
“edition” Mālik prepared of the Muwaṭṭaʾ.4 In any case, Yaḥyā’s recension of

the Muwaṭṭaʾ became the most widely used version of the text in the Islamic
West, and the version most familiar to modern scholarship.5
The Muwaṭṭaʾ, however, is not the only source on Mālik’s legal reasoning.
Subsequent generations of Muslim jurists compiled Mālik’s legal opinions
into various books that came to serve as the sourcebooks (ummahāt) for what
came to be known as the Mālikī school of law or, sometimes, the Medinese
school (madhhab ahl al-Madīna). These sourcebooks that purported to
document Mālik’s legal reasoning were apparently drawn from the notes,
recollections, and inferences of Mālik’s students, and sometimes the
students of Mālik’s students. The most important of the sourcebooks in the
later Mālikī tradition was the Mudawwana.6 Compiled by Saḥnūn b. Saʿīd (d.
240/854), a North African jurist who hailed from Qayrawān in present-day
4 At least seven recensions of the Muwaṭṭaʾ have been published, although some are only frag-
mentary. Jonathan Brockopp, “Rereading the History of Early Mālikī Jurisprudence,” Journal
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of the American Oriental Society 118, no. 2 (1998): 235.
Aside from Yaḥyā’s recension, the recension of Muḥammad b. al-Ḥasan al-Shaybānī (d.
189/805) is also well known and was widely disseminated, at least among followers of
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what came to be known as the Iraqi school of jurisprudence (i.e., the Ḥanafīs). Shaybānī’s
recension, however, represents a substantially different text from the other recensions of
the Muwaṭṭaʾ. Sarah Savant has documented, using computer analysis of the recensions of
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Yaḥyā, his near-contemporary Abū Muṣʿab al-Zuhrī (d. 242/856), and Shaybānī, that whereas
the recensions of Yaḥyā and Abū Muṣʿab are virtually identical, with relatively minor differ-
ences in ordering, less than 25% of Shaybānī’s recension overlaps with those of Yaḥyā and
Abū Muṣʿab, and less than 10% of the latter two recensions is found in Shaybānī’s. Savant
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concludes from these results that Shaybānī’s recension is better understood as a commen-
tary on the Muwaṭṭaʾ rather than as a recension of Mālik’s text. This is not surprising inso-
far as Shaybānī remained loyal to the Iraqi tradition of Islamic law and was interested in
transmitting only those portions of Mālik’s work that were useful for Iraqi legal doctrine.
Accordingly, he omits the entirety of Mālik’s own legal reasoning in his recension, even
though, as will be shown below, Mālik’s reasoning represents a substantial portion of the
book. Sarah Savant, “A Tale of 3 ‘Versions,’” KITAB website, September 10, 2017, http://
kitab-project.org/2017/09/10/a-tale-of-3-versions/ (accessed September 29, 2018). See
also Wymann-Landgraf, Mālik and Medina, 61–62 n. 119 (comparing Shaybānī’s recension of
the Muwaṭṭaʾ to that of Yaḥyā).
6 Saḥnūn b. Saʿīd, al-Mudawwana, 4 vols. (Beirut: Dār al-Fikr, 1986). Other sourcebooks include
al-Mustakhraja of ʿUtbī (d. 255/868), al-Wāḍiḥa of ʿAbd al-Malik b. Ḥabīb (d. 238/852), and
al-Mawwāziyya of Muḥammad b. Ibrāhīm b. Ziyād, known as Ibn al-Mawwāz (d. 269/882).
See Mohammad Fadel, “The Social Logic of Taqlīd and the Rise of the Mukhtaṣar,” Islamic Law
and Society 3, no. 2 (1996): 218 n. 98. It should be noted, however, that many passages of the
Mudawwana are verbatim quotations from the Muwaṭṭaʾ. See, for example, Wymann-Landgraf,
Mālik and Medina, 6, 54 n. 87, 61 n. 118, and 368. The Mustakhraja is published as part of
Ibn Rushd the Grandfather’s (d. 520/1126) commentary on that text: Abū al-Walīd Muḥam-
mad b. Rushd, al-Bayān wa’l-taḥṣīl wa’l-sharḥ wa’l-tawjīh wa’l-taʿlīl fī masāʾil al-Mustakhraja,
ed. Muḥammad Ḥijjī et al., 20 vols., 2nd ed. (Beirut: Dār al-Gharb al-Islāmī, 1988). Only small
portions of al-Wāḍiḥa have been edited and published. See Beatrix Ossendorf-Conrad, Das
“K. al-Wadiha” des ʿAbd al-Malik b. Ḥabīb: Edition und Kommentar zu Ms. Qarawiyyin 809/40
(Abwab al-Tahara) (Stuttgart: Franz Steiner, 1994), and ʿAbd al-Malik b. Ḥabīb, al-Wāḍiḥa:
Kutub al-ṣalāt wa-kutub al-ḥajj, ed. Miklos Muranyi (Beirut: Dār al-Bashāʾir al-Islāmiyya, 2010).
To our knowledge, no portion of the Mawwāziyya has yet been published.

10 Al-Muwaṭṭaʾ
Tunisia, the Mudawwana consists largely of a series of dialogues between

Saḥnūn and one of Mālik’s leading students, ʿAbd al-Raḥmān b. al-Qāsim (d.
191/806), in which Saḥnūn would ask Ibn al-Qāsim about Mālik’s views on
particular legal questions.7 Ibn al-Qāsim would, in each case, then provide
Saḥnūn with Mālik’s opinion on the matter, if he believed he knew what it
was. If he did not know Mālik’s opinion on the question, he might, using
conjecture, offer his opinion regarding what Mālik would have said about
the question, had it been posed to Mālik directly. He would sometimes also
share his own view on the issue under consideration. Saḥnūn occasionally
also included the views of other students of Mālik, as well as the views of
other Muslim scholars, in the course of elaborating a particular legal issue.
However, it is clear that Saḥnūn anchored the Mudawwana in the voice of
Mālik, and it later became the most important source of Mālikī positive law,
eclipsing even the Muwaṭṭaʾ itself.8
While it is extremely unlikely that Mālik viewed himself as founding a
legal school, the decisive impact he had on later generations of jurists who
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chose to follow his teachings ensured that he would hold an honored place
in the hall of Sunnī sages. But his impact was not limited to those jurists
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who chose to follow him. One of his leading students, Muḥammad b. Idrīs
al-Shāfiʿī (d. 204/820), identified closely with Mālik’s teachings in his youth
but went on to break with them and to take Islamic jurisprudence in a
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distinctly different direction, one perhaps more in keeping with the greater
cosmopolitanism of the ʿAbbāsid Empire. In so doing, he established the
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Shāfiʿī school of law.9 Mālik’s influence was also felt in the Iraqi school of law,
later known as the Ḥanafī school: Muḥammad b. al-Ḥasan al-Shaybānī, one of
Abū Ḥanīfa’s (d. 150/767) two most important disciples, spent substantial
time studying with Mālik in Medina. He even transmitted a version of the
Muwaṭṭaʾ to his own students, known as the Muwaṭṭaʾ of Muḥammad or the
Muwaṭṭaʾ of Shaybānī.10 Mālik also left an important legacy in the study of
hadith: not only was he deemed an astute critic of reports and transmitters,
7 For example, in the first line of the opening chapter of the Mudawwana, titled “What has come
down regarding ablutions (wuḍūʾ),” Saḥnūn wrote, “I said to ʿAbd al-Raḥmān b. al-Qāsim,
‘With respect to ablutions, did Mālik specify a number of washings, one, two, or three?’ He
said, ‘No, only that they be fulsome. Mālik did not specify a number of washings.’” Saḥnūn,
al-Mudawwana, 1:2.
8 For an account of how the Mudawwana became the central text of Mālikī positive law, see
Fadel, “Social Logic,” 218–24.
9 Shāfiʿī not only authored his own extensive treatise on positive law, known as al-Umm, but
also composed the first theoretical treatise on Islamic jurisprudence, known as al-Risāla.
This latter work would lead in later generations to the development of theoretical jurispru-
dence, which came to be known as uṣūl al-fiqh, a branch of knowledge that was distinct from
and independent of substantive law, which was simply known as fiqh.
10 Shaybānī also wrote a polemical refutation of the teachings of Mālik and the Medinese; see
Muḥammad b. al-Ḥasan al-Shaybānī, al-Ḥujja ʿalā ahl al-Madīna (Beirut: ʿĀlam al-Kutub, 1983).

but many of the reports that he included in the Muwaṭṭaʾ about the Prophet
Muḥammad were later incorporated into what became the most important
Sunnī collections of hadith, such as those of Bukhārī and Muslim.
The Place of the Muwaṭṭaʾ in Modern Scholarship

English-language scholarship in Islamic studies has long recognized the
centrality of the Muwaṭṭaʾ in the history of Islamic law and jurisprudence and
in the rise of hadith. Much of this scholarship, however, has been concerned
primarily with the provenance of the material Mālik cites in his book and with
what it tells us about early conceptions of authority in the Muslim community.
Historians of early Islamic law are divided with respect to two fundamental
issues. The first is the historical authenticity of the narrative materials
preserved in works such as the Muwaṭṭaʾ. The second is the nature of the
Prophet Muḥammad’s legislative authority in the early Muslim community,
a debate centered around the meaning of the term Arabic term sunna (law),
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and the extent to which it bears an exclusively Prophetic association.
Skeptics, most prominently the great Orientalist Ignaz Goldziher,11 the
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historian of Islamic law Joseph Schacht,12 and their followers, believe that
the historical reports found in the Arabic literary tradition, such as those
in the Muwaṭṭaʾ, which attributed various legal and theological doctrines
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to earlier generations of the Muslim community or sometimes to the
Prophet Muḥammad himself, were not to be taken at face value. Indeed,
the general position of these skeptics is that all such historical reports
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should be deemed fabrications unless proven otherwise. Instead of viewing

them as plausible historical accounts of the development of Islamic legal
doctrines, the skeptics argue that literary sources such as the Muwaṭṭaʾ are
useful only for determining the content of Islamic law at the time the works
were composed, but that they tell us nothing about the legal practices or
theological beliefs of prior generations of Muslims.
Traditional Muslim scholarship exhibited great concern for the integrity
of transmitted historical materials, particularly if they had legal or
theological significance. Accordingly, transmitters of traditions developed
a custom of naming their sources. Ideally, every historical report would be
prefaced by the names of the intermediate sources responsible for each
stage of the report’s transmission, beginning with the report’s source and
concluding with the person receiving the report. The chain of transmitters
documenting the report’s provenance was known as the isnād, literally “that
which props [something] up.” The content of the report, that which was
11 Ignaz Goldziher, Muslim Studies (London: Allen and Unwin, 1971).

12 Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1959).

12 Al-Muwaṭṭaʾ
“propped up” by the chain of transmitters, was called the matn. Scholars
of the skeptical school, however, placed no credence in these chains of
authorities, even suggesting that the more perfect the chain of authorities,
the greater reason there was to suspect forgery. They noted that sometimes
reports could be found in early works, such as the Muwaṭṭaʾ, with a chain
of transmitters that was truncated, ended with a Companion (sing. ṣaḥābī,
pl. ṣaḥāba) of the Prophet Muḥammad, or omitted intermediate sources,
only to appear in later works, such as the hadith collection of Bukhārī,
with a gapless chain of transmitters going back all the way to the Prophet
Muḥammad. To account for this phenomenon, skeptical scholars suggested
that later generations had invented chains of transmission to make it appear
as though the doctrines originated with the Prophet or the early community.
The skeptics’ belief that most historical reports found in early literary
sources should be deemed spurious is closely connected to their belief
that the early Muslim community did not see the Prophet Muḥammad as
a legislator or, if they did believe him to be one, did not consider him the
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Muslim community’s exclusive or supreme lawgiver. For them, the fact that
a historical report places a theological or legal norm in the mouth of the
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Prophet is evidence that a faction of Muslims attempted to project their
own normative views onto the Prophet Muḥammad to strengthen their
position vis-à-vis other Muslims who might have held a different view; it is
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not evidence that the norm in fact originated in Prophetic teaching. When
such a report is documented by a gapless chain of transmission, there is
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even greater reason to believe that the report was introduced later, rather
than earlier, in Muslim history.
There is a curious form of circularity in casting doubt on the accuracy
of a historical report on the grounds that it contains an appeal to a kind
of authority whose grounds, it is asserted, were articulated only later.
The danger of using normative standards regarding what does or does
not count as a plausible legal argument in the early Muslim community to
date particular texts comes out most clearly in the work of Norman Calder.
Calder, who read in the Muwaṭṭaʾ a theory of the Prophet Muḥammad as the
community’s supreme legislator, used this reading to argue that, contrary to
the common view of scholarship, the Mudawwana must have preceded the
Muwaṭṭaʾ. It was Calder’s view that because the Prophet’s role as supreme
legislator had become firmly established in legal theory only in the third
Islamic century (ninth century CE), the Muwaṭṭaʾ must have been written
substantially after Mālik’s death, and thus its attribution to Mālik is, like the
attributions of many traditions to the Prophet Muḥammad, fictitious.13
13 Norman Calder, Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press, 1993). See
Mohammad Fadel, “Authority in Ibn Abī Zayd al-Qayrawānī’s Kitāb al-nawādir wa-l-ziyādāt
ʿalā mā fī l-Mudawwana min ghayrihā min al-ummahāt: ‘The Chapter of Judgments’ (Kitāb

Unsurprisingly, Muslim scholars have reacted to such claims impeaching

the integrity of the Islamic legal tradition with derision and hostility.
Numerous Muslim scholars have published books and articles in both
English and Arabic defending the authenticity of the reports preserved
by the early Muslim literary tradition and the antiquity of the Prophet
Muḥammad’s status as not only a legislator but as the supreme legislator
of the Muslim community from the earliest days of the Muslim community.
Perhaps the best example of this genre of writing is Muhammad al-Azami’s
On Schacht’s Origins of Muhammadan Jurisprudence,14 in which Azami
attempted to refute Schacht’s claim that Muslim jurists invented spurious
chains of transmission in order to attribute, anachronistically, their
preferred legal positions to the Prophet Muḥammad. Azami demonstrated
that the phenomenon of the apparent backward proliferation of chains of
authorities might be explained by the failure of skeptical scholars to consider
the broad range of historical material available. While Mālik, for example,
might have included a report with only a perfunctory chain of transmitters,
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another, contemporaneous authority might have transmitted the same
report with the full chain of authorities. Azami also criticized Schacht and
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his followers for failing to distinguish between the use of traditions in works
of law such as the Muwaṭṭaʾ and in the works of traditionists (scholars who
specialized in the transmission of historical reports about the Prophet
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Muḥammad, known as muḥaddithūn or ahl al-ḥadīth). According to Azami,

jurists were relatively indifferent to documenting the chains of authorities
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for every report they used in their legal reasoning. In short, Azami and
other scholars with a positive view of the integrity of the Muslim tradition
have demonstrated that there are numerous plausible explanations for the
phenomenon of the backward proliferation of chains of authorities other
than Schacht’s suggestion of deliberate forgery.15
al-aqḍiya),” in The Heritage of Arabo-Islamic Learning: Studies Presented to Wadad Kadi, ed.
Maurice A. Pomerantz and Aram A. Shahin (Boston: Brill, 2016), 208–9. However, the care-
ful work of Miklos Muranyi, based on careful analysis and collation of thousands of pieces
of early manuscript evidence found in North African libraries, has generally been taken as
vindicating the traditional dating of the Muwaṭṭaʾ and the Mudawwana. See Joseph E. Lowry,
review of Die Rechtsbücher des Qairawāners Saḥnūn b. Saʿīd: Entstehungsgeschichte und
Werküberlieferung by Miklos Muranyi, Journal of the American Oriental Society 123, no. 2
(2003): 439 (stating that “Muranyi has surely disproved Calder’s imaginative reconstruc-
tion” of the relative dating of the Mudawwana and the Muwaṭṭaʾ).
14 Muhammad M. al-Azami, On Schacht’s Origins of Muhammadan Jurisprudence (Oxford: Oxford
Centre for Islamic Studies and Islamic Texts Society, 1996).
15 See, for example, Nabia Abbott, Studies in Arabic Literari Papyri, 3 vols. (Chicago: University
of Chicago Oriental Institute Publications, 1957), for evidence that the early Muslim com-
munity recorded traditions of the Prophet Muḥammad. See also Harald Motzki, Analysing
Muslim Traditions: Studies in Legal, Exegetical and Maghāzī Ḥadīth (Boston: Brill, 2010), who
attempts to develop a method for dating traditions that neither assumes that the chains of
authorities are forgeries nor takes them as conclusive.

14 Al-Muwaṭṭaʾ
Whatever one’s views regarding the dating of Muslim traditions generally

and of the historical authenticity of the traditions that Mālik cites in the
Muwaṭṭaʾ in particular, one can approach the Muwaṭṭaʾ without taking a
stance on the provenance of either the work or the materials it contains.
Contemporary readers are entitled to read it as an important artifact of
Islamic legal history—indeed, of legal history generally16—that challenges
us to understand it on its own terms, whether at the level of its implicit
theory of law (jurisprudence, or what the later Islamic tradition would call
uṣūl al-fiqh) or at the level of its specific legal doctrines (positive law, or
what Islamic tradition refers to as fiqh). It is our hope as translators that
our translation will render the text of the Muwaṭṭaʾ sufficiently accessible
to nonspecialists to allow them to appreciate it with both questions in mind.
Calder has helpfully classified the modes of reasoning in early Islamic
legal thought as falling broadly into two categories: apostolic and discursive.17
Discursive arguments are characteristically dialogic in structure, often
appearing in the guise of a question followed by an answer, or a statement
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followed by a response.18 Arguments rooted in apostolic authority, by
contrast, are exegetical in structure; that is, they are based on deciphering
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the meaning of an authoritative text, whether from the Quran, from the
Prophet Muḥammad, or from some other authority figure. This division
of arguments into those of authority versus those of discursive reason,
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moreover, is well known in the Islamic tradition, which itself broadly

recognizes the distinction between arguments rooted in authority and
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those rooted in reason. The Islamic tradition uses various terms to refer to
authority arguments, including naql (transmitted information), samʿ (heard
information), and athar/khabar/hadith (reported information), to name
only a few. Likewise, there are a number of terms for rational (discursive)
arguments, such as raʾy (considered opinion), naẓar (deliberation), and
qawl (a view). Indeed, Islamic sources themselves describe early legal
and theological disputes as being grounded in different conceptions of the
relative authority of revelation and reason, sometimes labeling one group
aṣḥāb al-ḥadīth (the partisans of transmitted authority) and its rivals aṣḥāb
al-raʾy (the partisans of considered judgment).
Part of what makes the Muwaṭṭaʾ a challenging text is that it resists neat
categorization as either a vindication of authoritative texts against rational
argumentation or a vindication of rational argumentation over texts. In
reading this work, therefore, the reader must attempt to understand how
16 To put the Muwaṭṭaʾ into a broader historical context, the Justinian Code, for example, was
developed between 529 and 565 of the Common Era, only two centuries before Mālik.
17 Calder, Studies, 8 and 19.
18 Calder, Studies, 8 and 19 (noting that discursive arguments are often marked by an “I said, he
said” [qultu/qāla] structure or introduced by the phrase, “What do you think [a-raʾayta]?”).

its author views the relationship between authority and reason. As the
preceding discussion of scholarly debates regarding the provenance of the
Muwaṭṭaʾ indicates, however, scholars have sometimes implicitly conflated
jurisprudential questions with questions related to the authenticity of the
materials on which such questions draw. One consequence is that some
scholars essentially use jurisprudential arguments to derive conclusions
regarding the authenticity of particular texts. Although we believe that
this is a serious methodological error, it is nevertheless important for the
reader to be aware of the different jurisprudential theories that modern
scholars have attributed to the text. Awareness of the different accounts of
the Muwaṭṭaʾ’s jurisprudence will help the reader approach the text with a
better sense of its interpretive possibilities.
As seen in greater detail below, while there is a great deal of disagreement
among modern scholars about Mālik’s jurisprudence, there is convergence
regarding certain features of the Muwaṭṭaʾ and its place in Islamic legal
history. First, there is broad agreement that Mālik’s jurisprudence
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represents, for lack of a better term, an “old” style of jurisprudence that was
displaced with the rise of a “new” style of jurisprudence. This new style of
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jurisprudence is exemplified by the writings of Mālik’s student Muḥammad
b. Idrīs al-Shāfiʿī. In contrast to earlier generations of Muslim jurists,
including Mālik himself, Shāfiʿī was deeply concerned with articulating a
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formal set of jurisprudential principles that could justify substantive legal

doctrine. Although he began his study of the law as a student of Mālik, his
PR
peripatetic career, which led him to various regions of the ʿAbbāsid Empire,
including Yemen, Iraq (especially the ʿAbbāsid capital, Baghdad), and
finally Egypt, exposed him to the diversity of legal views within the Muslim
world. In the course of these travels, moreover, Shāfiʿī regularly debated
with local scholars, constantly challenging them to explain the grounds on
which they justified their diverse doctrinal positions. His critical approach
to substantive law ultimately led him to write treatises devoted exclusively
to the jurisprudential questions of what are the material sources that
constitute Islamic law and what are the proper means of inference (istidlāl)
that may be used to interpret those material sources. The most famous
of these theoretical reflections on jurisprudence is known simply as The
Epistle (al-Risāla).19
Shāfiʿī articulated a formal system of jurisprudence based on three
material sources of law—the Quran, Prophetic law (sunna), and the
19 There are two translations of this text into English, the first by Majid Khadduri, Islamic Juris-
prudence: Shāfiʿī’s “Risāla” (Baltimore: Johns Hopkins Press, 1961), and the second by Joseph
E. Lowry, The Epistle on Legal Theory: A Translation of al-Shāfiʿī’s “Risālah” (New York: New
York University Press, 2013).

16 Al-Muwaṭṭaʾ
consensus of the Muslim community (ijmāʿ)—and one method of reasoning,

analogy (qiyās). Shāfiʿī’s theory of the sources of Islamic law is sometimes
referred to as the “four sources” theory. Many scholars also assume that
Shāfiʿī’s four-source theory of the law later became the universal theory
that defined Sunnism. For that reason, scholars sometimes refer to him as
“the master architect” of Islamic law.20
Even a cursory skim of the Muwaṭṭaʾ, however, discloses that Mālik
certainly recognized the authority of each of these three material sources
insofar as he appealed, from time to time, to Quranic texts, to traditions
attributed to the Prophet Muḥammad, and to a kind of consensus. It is
also clear from the Muwaṭṭaʾ that Mālik sometimes engaged in analogical
reasoning. Therefore, what is distinctive about Shāfiʿī’s contribution?
Whereas there was no substantive difference with respect to the Quran
between Mālik and other representatives of the “old” jurisprudence, on
the one hand, and Shāfiʿī, on the other hand, Shāfiʿī applied much more
demanding standards than did other jurists for what constituted evidence of
F
Prophetic law, the sunna. Mālik, for example, accepted traditions attributed
to the Companions of the Prophet Muḥammad, as well as traditions
O
attributed to the next two generations of Muslims, known as the Followers
(tābiʿūn) and the “followers of the Followers” (tābiʿū al-tābiʿīn), as evidence
of Prophetic law. He also accepted as evidence traditions attributed to the
O
Prophet Muḥammad that lacked a complete chain of transmitters attesting

to the authenticity of the report. For example, Mālik frequently omitted the
PR
names of all the intermediary transmitters of the report between himself

and the Prophet Muḥammad, and he would sometimes simply attribute the
report to an unnamed source that he deemed to be trustworthy.21
Shāfiʿī, by contrast, admitted only traditions that satisfied the most
rigorous criteria of authenticity—those that included the names of all
the reporters who had participated in transmitting the report from the
report’s origination with the Prophet Muḥammad to himself. Shāfiʿī
insisted that only reports with explicit and uninterrupted chains of
transmission could serve as evidence of Prophetic law because although
a Muslim is bound to obey Prophetic law, there must be objective proof
that a particular norm is, in fact, part of Prophetic law before he is under
an obligation to follow it. When a Muslim hears a Prophetic tradition,
20 See, for example, Wael Hallaq, “Was al-Shāfiʿī the Master Architect of Islamic Jurisprudence?,”
International Journal of Middle East Studies 25, no. 4 (1993): 593 (while denying that Shāfiʿī
in fact was the “master architect” of Islamic jurisprudence, Hallaq argues that he was the
first to articulate the “great synthesis” between rationalists and traditionists that is said to
characterize Sunnī Islam).
21 See, for example, hadith no. 933 of the RME, where Yaḥyā gives the chain of transmitters as
follows: “According to Mālik, a source he deemed reliable reported (ʿan al-thiqa ʿindahu).”

he will suffer confusion if he has no means to determine whether the

teaching contained in the tradition is an authentic part of Prophetic law
(and therefore to be obeyed) or a mistaken attribution to the Prophet
Muḥammad or, worse still, a forgery (and therefore to be ignored).
Only if the full chain of transmitters of the report is disclosed to the
listener is he in a position to evaluate the soundness of the report’s
contents, because he is then able to determine whether the transmitters
are reliable. If the listener can establish that each link in the chain of
transmission is reliable, he can soundly conclude that the teaching in
the report is part of Prophetic law and must be taken into account in
determining his legal rights and obligations before God.
Accordingly, for Shāfiʿī, a report, even if attributed to the Prophet
Muḥammad, is not admissible as evidence of Prophetic law unless two
conditions are satisfied. First, the report must include a complete chain of
transmission. And second, the transmitters of the report, at each stage of
its transmission, must be known to be trustworthy. When these conditions
F
are satisfied, the report is considered valid (ṣaḥīḥ) and its teachings
become obligatory, even if only a few individuals (or, in the extreme
O
case, only one) report the tradition, and even if the tradition goes against
numerous other reports of the Prophet’s Companions or their Followers.
The only exception to this principle occurs when another source of law
O
contradicts or otherwise qualifies the report’s teachings. However, Shāfiʿī

went to great lengths to demonstrate that many traditions attributed to
PR
the Prophet that were commonly thought to contradict other traditions

or the Quran were not, in fact, contradictory and could, with proper
knowledge of the Arabic language as well as the community’s history,
be harmonized.
This point marked another distinctive feature of Shāfiʿī’s jurisprudence:
when faced with texts that seemed to contradict one another, he attempted
to harmonize them (jamʿ) rather than give effect to only one of them
(tarjīḥ) and ignore the others. Shāfiʿī’s approach to Prophetic law thus
reduced the possibility of contradictions within the body of reports that
constituted evidence of Prophetic law by simply excluding a vast amount
of traditional material that did not meet his relatively stringent formal
criteria of validity. However, Mālik and other jurists adhering to the “old”
jurisprudence were more willing to accept reports while ignoring contrary
reports without providing a clear basis for their choice, because they
admitted a much broader set of reports as valid evidence of Prophetic law.
Shāfiʿī’s theory of what constituted Prophetic law and how it related to
the other material sources of law gave pride of place to reports attributed
to the Prophet Muḥammad that bore objective indicia of reliability in the

18 Al-Muwaṭṭaʾ
form of complete chains of transmitters whom the Muslim community

knew to be trustworthy.22
Shāfiʿī also articulated a doctrine of consensus (ijmāʿ) that essentially
eviscerated it, neutering it as an effective source of law. Whereas the “old”
jurisprudence often relied on assertions of consensus or agreement, these
claims did not assert universal agreement or consensus. In most cases,
claims of agreement or consensus indicated that a majority of jurists
agreed on a particular principle of law, and not that all of them agreed.
Furthermore, even these majoritarian agreements were not universal,
but instead often reflected only local majorities of scholars. Accordingly, a
claim of consensus or agreement often boiled down to the agreement of
a majority of scholars in a particular location, such as the scholars of the
Hijaz (Mecca and Medina), those of Iraq (Kufa and Basra), or the Levant.
Shāfiʿī, however, understood consensus as requiring the agreement of
all Muslims, not just the agreement of the learned. The effect of such an
understanding of consensus was to reduce its purview to those elements of
F
revealed law that were elementary, such as the obligations to pray, to fast,
to pay the alms-tax, to perform the Pilgrimage, and so on, and to eliminate
O
it as a source of law for the substantive regulation of either ritual or secular
life. Another consequence of this narrow understanding of consensus was
that it reinforced the status of valid Prophetic traditions as a preeminent, if
O
not the dominant, source of Islamic law.

With respect to what constituted legitimate tools of legal reasoning,
PR
Shāfiʿī’s theory was not original insofar as he recognized the validity of

analogical reasoning. There is no doubt that the “old” jurisprudence made
much use of analogy, a fact that is evident from the Muwaṭṭaʾ. What was
unique about Shāfiʿī’s theory of legal reasoning was that he argued that
the only form of legitimate legal reasoning was analogy based on a rule
set out in one of the three material sources of law—Quran, Prophetic
law, or consensus. With this position, he pitted himself against the “old”
jurisprudence, which was also willing to use other modes of practical
reasoning to derive legal rules.
Mālik, for example, readily used the doctrine of “preclusion” or “blocking
the means” (sadd al-dharīʿa) to prohibit conduct that, although lawful if
viewed in isolation, could reasonably be expected to produce an unlawful
result. Mālik would also sometimes take into account conceptions of the public
22 Wymann-Landgraf suggests that in many cases the disagreement between Mālik and Shāfiʿī
regarding how Prophetic law should be understood turned on how much weight to give the
Prophet Muḥammad’s nonverbal conduct, with Mālik much more reluctant to take such con-
duct as evidence of Prophetic law. See, for example, Wymann-Landgraf, Mālik and Medina,
106 (noting that according to the Mālikīs, reports of the Prophet’s actions are ambiguous and
in need of further interpretation to determine their legal content).

good (al-maṣlaḥa al-mursala) in formulating legal rules without grounding

his conclusions in a rule enshrined in one of the three material sources of
law. Similarly, Iraqi jurists would sometimes adopt a rule that was contrary to
analogical reasoning on the basis of what they called istiḥsān, which is often
translated as “equity” or “juristic preference.” Shāfiʿī, however, vociferously
rejected these various modes of nontextual legal reasoning in his polemics
with followers of the “old” jurisprudence, even authoring a treatise called
“The Invalidation of Istiḥsān” (Ibṭāl al-istiḥsān).23 Just as Shāfiʿī’s approach to
Prophetic law dramatically reduced the kinds of evidence admissible to prove
the content of Prophetic law, his theory also significantly reduced the scope
of legitimate legal reasoning by limiting it to analogical reasoning grounded
in a rule found in one of the three material sources of law.
Finally, Shāfiʿī elevated the status of the individual legal interpreter over
the community as a collective interpreter by recognizing an individual duty
to engage in a search for the legal truth in situations in which the material
sources did not provide an explicit answer to a legal question. This search for
F
an answer to a legal question he called ijtihād, and he derived its necessity
from the general obligation of Muslims to face the Kabah (a cube-shaped
O
shrine located in Mecca) when they perform their daily prayers. If a Muslim
is in the vicinity of the Kabah, his sense perception provides immediate
and necessary knowledge of the proper direction of prayer. If, however, the
O
Muslim is not in Mecca, he is obliged to infer the direction of the Kabah

using natural signs, such as the location of stars, as well as other possible
PR
indicants to determine, to the best of his or her ability, the direction in

which he ought to pray. By doing so, he has discharged his duty before God,
whether or not his reasoning is correct.
According to Shāfiʿī, the same principle applies whenever a Muslim is
faced with a practical question of law for which the revealed sources do
not provide a clear answer. In such a case, the Muslim is obliged, to the
extent of his ability, to seek evidence (dalīl) of what God’s intended rule is
by investigating the material sources of law in order to reach a reasoned
judgment. Whether or not his conclusion is correct, he has satisfied his duty
before God. By contrast, blindly following the opinion of another scholar or
a group of scholars (a process known as taqlīd), at least in circumstances
in which the Muslim has the capacity to understand the material sources of
law directly, does not discharge his duty before God and therefore implicitly
results in sin.24
23 Shāfiʿī’s opposition to non-analogical modes of legal reasoning was so strident that he was
commonly reported to have said, “Whoever reasons by istiḥsān has certainly invented law”
(man istaḥsana fa-qad sharaʿa).
24 For details on Shāfiʿī’s view of ijtihād and taqlīd, see Ahmed El Shamsy, “Rethinking Taqlīd in
the Early Shāfiʿī School,” Journal of the American Oriental Society 128, no. 1 (2008): 1–23.

20 Al-Muwaṭṭaʾ
Modern scholars’ view of Shāfiʿī’s contribution to Islamic jurisprudence

inevitably colors their understanding of Mālik’s approach to Islamic law as
set out in the Muwaṭṭaʾ. It would not be much of an exaggeration to say
that Schacht considered Shāfiʿī and his jurisprudence the telos toward
which Islamic law was evolving and its natural equilibrium point. Indeed,
one might even say that in Schacht’s view, Islamic law did not become
truly Islamic until Shāfiʿī, whose jurisprudential method sought to anchor
every rule in a revealed source. For Schacht, the “old” jurisprudence was
characterized by a different ethos, one that he referred to as the “living
sunna.” By this term he meant that the legal system of the early Muslim
community was little more than an ad hoc, anonymous amalgamation of
Arab customary laws and the laws of the conquered peoples of the Near
East, with only a vague connection to Quranic ethical principles.
Prophetic law was not a constituent element of this living sunna in
Schacht’s conception. The fact that Mālik included in the Muwaṭṭaʾ traditions
attributed to the Prophet Muḥammad did not contradict this conclusion,
F
since Mālik clearly did not feel bound to give effect to all of the Prophetic
traditions that he included. However, in Schacht’s view, Mālik’s inclusion
O
of Prophetic traditions indicated that the idea of the living sunna as the
basis of the Muslim community’s law was already beginning to give way
to a notion of an explicitly Prophetic law. But at least in Mālik’s generation,
O
scholars were still keen on defending the living sunna against the threat
posed by Prophetic traditions, which were often transmitted by relatively
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small numbers of individuals. According to Schacht, Shāfiʿī’s powerful

defense of Prophetic law and his insistence on excluding secondary
evidence and admitting only rigorously authenticated Prophetic traditions
finally served the coup de grace to the living sunna and the “old” method of
jurisprudence. Followers of the latter continued to adhere to the teachings
of prior generations, but as a result of Shāfiʿī’s impact, they could no longer
justify their position on the grounds of either consensus or deference to
prior authority. Accordingly, Schacht concluded, they had no choice but to
fabricate Prophetic traditions to support their legal positions.
In Schacht’s assessment, therefore, Shāfiʿī’s legacy is mixed. Although
Shāfiʿī succeeded in the articulation of a jurisprudence that transformed
what had merely been the law of the Muslims into a self-consciously Islamic
legal system, that very same jurisprudence also led to stasis in Islamic law
and its ultimate demise. Because his jurisprudential theory reduced Islamic
law to a process of law-finding that was limited to a body of fixed texts, once
the body of Prophetic traditions had stabilized in the century after Shāfiʿī,
Islamic law lost the adaptive qualities that had characterized the role of
the living sunna in the “old” jurisprudence. As a result, Islamic law found it

increasingly difficult, if not impossible, to adapt to changing circumstances,

a feature that caused its deep crisis in the modern era.
Schacht’s view of the “old” methods of jurisprudence does have some
empirical basis in the Muwaṭṭaʾ. Mālik includes reports from numerous
authority figures other than the Prophet Muḥammad. At times, he cites
Prophetic traditions but explicitly points out that these traditions are not
only not legally normative but actually contrary to the law. In such cases,
Mālik often invokes the concept of “practice” (ʿamal). Indeed, post-Shāfiʿī
jurisprudence would identify Mālik’s conception of “the practice of the
people of Medina” (ʿamal ahl al-Madīna) as a distinctive feature of what
would become Mālikī substantive law. Schacht appears to treat Mālik’s
conception of the practice of the people of Medina as the paradigm of the
living sunna that characterized the “old” jurisprudence and that was the
direct object of Shāfiʿī’s critique.
Other scholars, however, have denied that Mālik’s conception of the
practice of the people of Medina functioned as an alternative to Prophetic
F
law in the manner Schacht suggested. Rather, according to them, Mālik
understood “practice” to be a more reliable indicant of Prophetic law than
O
were traditions narrated through single chains of transmission, even if the
individual transmitters were known to be reliable.25 Others agreed with
Schacht in part, accepting his claim that the pre-Shāfiʿī law of the Muslim
O
community was based on the living sunna in the sense that it was the product
of the deliberations of the Muslim community at the time and hence dynamic.
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But they qualified Schacht’s understanding of the living sunna by insisting that
such deliberations and the development of the law were always conducted
under the general rubric of Prophetic law, so it was an error to juxtapose the
“old” conception of law with the idea of Prophetic law.26
However, these observations about the status of “practice” (ʿamal) in
Mālik’s jurisprudence in general and in the Muwaṭṭaʾ in particular are largely
impressionistic and not based on a systematic reading of the text itself.
The groundbreaking work of Umar Abd-Allah Wymann-Landgraf on the
Muwaṭṭaʾ, by contrast, provides a systematic analysis of Mālik’s approach
to the law.27 On the basis of a close analysis of Mālik’s terminology in the
25 See, for example, Yasin Dutton, The Origins of Islamic Law: The Qurʾan, the “Muwaṭṭaʾ” and
Madinan ʿAmal, 2nd ed. (New York: RoutledgeCurzon, 2002), 30 (arguing that although
Mālik recognized the decisive role of Prophetic traditions in the derivation of Islamic law,
he believed that they could be properly understood only by reference to the practice of the
Muslim community).
26 See, for example, Fazlur Rahman, Islamic Methodology in History (Karachi: Karachi Central
Institute of Islamic Research, 1965), 19. See also El Shamsy, “Rethinking Taqlīd,” 3, where he
equates Schacht’s notion of the living sunna with Mālik’s concept of practice but notes that
Prophetic traditions “were clearly an important element” constituting the “living tradition.”
27 Wymann-Landgraf, Mālik and Medina.

22 Al-Muwaṭṭaʾ
Muwaṭṭaʾ, Wymann-Landgraf argues convincingly that Mālik developed

a sophisticated set of terms that he used to make systematic distinctions
between rules of law based on historical authority and those based on
discursive authority. Mālik denoted the former category of rules with the
term sunna and the latter with the term amr. Moreover, Mālik’s terminology
also signaled to his readers the degree to which various legal rules were the
subject of agreement in Medina. Accordingly, he would sometimes describe
a rule as “the rule in our view” (al-amr ʿindanā) or “the agreed-upon rule
among us” (al-amr al-mujtamaʿ ʿalayhi ʿindanā), the latter indicating a
greater degree of acceptance among the Medinese than the former. Mālik
also deployed many other terms, according to Wymann-Landgraf, to convey
the range of views on particular legal issues, from terms indicating that the
stated position was his own opinion to those marking the absence of known
dissent on the rule in question.28
Wymann-Landgraf’s analysis of Mālik’s terminology calls into question
Schacht’s conception of the living sunna as an anonymous amalgam of ad
F
hoc norms adopted in response to new problems in the community. On this
account, Mālik’s notion of the practice of the people of Medina entailed a
O
complex set of interpretive and jurisprudential assumptions and practices.
In some cases, these included the assumption of a continuing, unbroken
line of “practice” that originated in the days of the Prophet Muḥammad.
O
The legitimacy of such practice could not be doubted simply because

a lone reporter transmitted a Prophetic tradition contrary to it, even if
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the transmitters of that report were otherwise reliable. Mālik’s notion

of practice also encompassed appeal to the systematic legal reasoning of
scholars, sometimes individual and at other times collective, that was based
on legal norms and not on revealed texts and so was broader than the legal
analogy that Shāfiʿī endorsed as the only permissible tool of legal reasoning.
It also included an idea of relative consensus and thus recognized points of
agreement and disagreement within the community as well as the breadth
of each. Finally, it recognized that certain legal norms—which Mālik
called sunna—were themselves not justifiable in terms of systematic legal
reasoning but rather defined the bounds within which systematic legal
reasoning took place.29
Wymann-Landgraf thus argues that even before Shāfiʿī, Islamic law
was deeply committed to formal legal reasoning (ijtihād), although it
recognized a broader set of legitimate inferential tools than Shāfiʿī’s limited
28 Mālik’s other terms include, for example, “the agreed-upon rule among us, the one in respect
of which there is no dissent” (al-amr al-mujtamaʿ ʿalayhi ʿindanā alladhī lā ikhtilāfa fīhi).
29 Because of the compelling nature of Wymann-Landgraf’s argument, the translation strives to
use consistent translations of Mālik’s terminology and to provide transliterations of the key
Arabic terms.

legal analogy. Accordingly, the notion of practice cannot be equated with a

vague, ad hoc system of customary law, as Schacht’s analysis would suggest.
Moreover, even after Shāfiʿī, Muslim scholars trained in the Hijazi and Iraqi
traditions (which later came to be known as the Mālikī and Ḥanafī schools,30
respectively) continued to accept the legitimacy of the inferential techniques
that Shāfiʿī had so vehemently rejected and to follow their own, broader,
pre-Shāfiʿī conceptions of how Prophetic law may be established. Therefore,
contrary to Schacht, Shāfiʿī’s theory of the four sources never became the
common Sunnī theory of law. The Mālikīs and the Ḥanafīs continued to
reject Shāfiʿī’s most distinctive jurisprudential claims regarding the role of
Prophetic traditions as well as his narrow definition of consensus and his
position that analogy was the only legitimate method of legal reasoning.
Accordingly, they had no need to forge Prophetic traditions to defend their
points of view. In addition, there is very little evidence to support Schacht’s
claim that post-Shāfiʿī jurists increasingly relied on Prophetic traditions to
support their interpretations of controversial points of law, whether the
reports were forged or authentic.31 F
For Ahmed El Shamsy, the crucial development inaugurated by Shāfiʿī’s
O
jurisprudence was not his emphasis on the centrality of the Prophet
Muḥammad as a lawgiver but rather the gradual canonization of the Muslims’
collective memory of the Prophet’s mission. The process of canonization
O
resulted in the transfer of religious authority from the community of

Muslims to a body of texts that recorded the community’s experience
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of revelation. The result was a sharp demarcation between the sacred

time of the Muslim community’s founding and its subsequent, “secular”
history. Prior to canonization, the significance of the Muslim community’s
past necessarily had to be mediated through its living experience. But
once canonization had clearly separated sacred time from secular time,
there was no need for communal experience to access the Prophetic era;
instead, the individual interpreter became the locus of understanding the
present implications of the sacred founding moment. In the post-Shāfiʿī
era, El Shamsy argues, Islamic law was characterized by communities of
interpretation known as the schools of law (sing. madhhab, pl. madhāhib),
30 Followers of the Iraqi tradition of Islamic law were known as Ḥanafīs after the leading repre-
sentative of that tradition, Abū Ḥanīfa.
31 At several points in his book, Wymann-Landgraf identifies a rule in the Muwaṭṭaʾ as a point
of contention between Hijazi and Iraqi jurists but notes that neither side was able to produce
a conclusive Prophetic tradition to vindicate its position, whether during Mālik’s lifetime or
over the succeeding generations. See, for example, Wymann-Landgraf, Mālik and Medina, 375
(noting that despite the antiquity of the disagreement between the Iraqis and the Medinese
regarding how to distribute the estates of individuals who die in common circumstances,
such as during battles, in shipwrecks, or under collapsed buildings, neither party was able to
cite a hadith in support of its position).

24 Al-Muwaṭṭaʾ
rather than the communities of tradition that had prevailed in the first two
centuries of Islam before Shāfiʿī.32
The ideological transformation sparked by canonization was paralleled
by a sociological transformation that reinforced this cultural development.
Whereas Mālik was born in an Islamic empire dominated by Arab Muslims
and one in which Arab tribal origins were a distinct badge of privilege,
by Shāfiʿī’s death in the beginning of the third Islamic century, Muslim
society had become ethnically cosmopolitan, and tribal membership was
rapidly losing its social importance. The new order under the ʿAbbāsids,
for example, increasingly relied on non-Arab Muslims to staff the empire’s
legal and administrative bureaucracy. In such a sociological milieu, it
is not surprising that a conception of the law such as that advanced by
Shāfiʿī, which cast the law as amenable to theoretical study along the
lines of any other science, would displace a conception of the law rooted
in shared experience. The kind of experience-based justification of law
seemingly advocated by Mālik and other jurists of the “old” school seemed
F
to marginalize, even if unintentionally, new Muslims, who by virtue of
their more recent conversion could never be the discursive equals of “old”
O
Muslims. Shāfiʿī’s jurisprudence, by making a common body of texts that
existed in the space of sacred time the exclusive source of religious and
legal authority, had a leveling effect between old Muslims and new converts.
O
Both groups existed in historical time and therefore were equidistant from
the sacred time that held a monopoly over the new community’s authority.
PR
Whereas Mālik was reported to have believed that “the people” should defer
to the Medinese (al-nās tabaʿ li-ahl al-Madīna), for Shāfiʿī all Muslims stood
in an equal relationship to the community’s founding moment. The implicit
social egalitarianism of Shāfiʿī’s jurisprudence was in that respect more
consonant with the spirit of the ʿAbbāsid age than was the communitarian
model of law and authority found in the Muwaṭṭaʾ, which effectively denied
that those who had not experienced life in the Prophet’s community could
reach a true understanding of Prophetic law.33
Overview of the Muwaṭṭaʾ

Although modern scholarship has provided many interesting and useful
insights regarding the Muwaṭṭaʾ and its relationship to Mālik’s jurisprudence,
its engagements with the text have been overwhelmingly generic, and its
conclusions have consequently been partial, incomplete, and in many cases
reductive. To demonstrate their weaknesses, however, it is first necessary to
32 Ahmed El Shamsy, The Canonization of Islamic Law: A Social and Intellectual History (New
York: Cambridge University Press, 2013), 4–6.
33 El Shamsy, Canonization, 91–92.

provide a fuller description of the text to show that there is no single theory
that structures the relationship between authority and legal reason in
Mālik’s jurisprudence. Instead, context matters. As shown in greater detail
below, some discussions in the Muwaṭṭaʾ are almost entirely dependent
on what Calder would have called “apostolic” authority, that is, appeals to
authoritative texts that call simply for exegesis, while other discussions are
virtually devoid of historical texts and therefore consist almost entirely of
discursive legal reasoning. One cannot fully grasp the jurisprudence of the
Muwaṭṭaʾ, therefore, without also taking into account the distribution of
different kinds of arguments across the work.
Accordingly, we will here provide an overview of the book’s arrangement
and contents, outline a taxonomy of the texts Mālik uses, and tally the
distribution of these texts throughout the work, both in the aggregate and at
the level of individual chapters. This overview, in turn, will allow the reader
to better appreciate the relationship of authority and discursive reason in
Mālik’s jurisprudence.
F
Mālik arranged the Muwaṭṭaʾ in a series of parts that the modern reader
would call chapters but that Mālik himself titled “books,” each chapter
O
representing one book (kitāb). The Royal Moroccan Edition (RME), which
forms the basis of this translation, includes forty-five books, the first
entitled the Book of Obligatory Prayer Times and the last called the Book
O
of Miscellaneous Matters. Each book is typically divided into one or more

sections, each with its own heading, with one or more texts included under
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each heading.34 Although the manuscript does not number the texts, the
editors of the RME have done so. According to their enumeration, the RME
contains 2,815 distinct texts. The first twenty books of the Muwaṭṭaʾ pertain
to ritual law, regulating the ordinary ritual practices of Islam commonly
referred to as the “five pillars” of Islam as well as certain supererogatory
rituals closely associated with those duties.35 These texts make up almost
40% of the book’s length if measured by word count,36 and 45% of the
34 The only exception to this pattern is Book 38, which does not contain separate sections.
Instead, it has a single section titled “Leasing Out Farmland.” It is, however, clearly separate
from Book 37, and it concludes with the statement, “The Book of Leasing Farmland has been
completed, with praise to God.”
35 The “five pillars” of Islam consist of the testimony of faith, daily prayer (ṣalāt), fasting
(ṣiyām), almsgiving (zakāt), and pilgrimage (ḥajj). Mālik also includes texts that deal with
various supererogatory forms of worship associated with these required rituals. One might
question the inclusion of Book 16, the Book of the Alms-Tax (zakāt), among the chapters that
deal with ritual law and instead classify it simply as part of the law of taxation in light of its
objective character and the fact that it even touches on the tax obligations of non-Muslims.
Of the chapters that treat ritual, the Book of the Alms-Tax is the second-longest, consisting of
approximately 12,000 words and including 129 distinct texts.
36 Our translation contains approximately 270,000 words. The total word count of the first
twenty books is approximately 100,000.

26 Al-Muwaṭṭaʾ
book’s length if measured as a proportion of the total number of texts

in the work.37 If a broader understanding of ritual is used, however, it is
also necessary to include Books 21–26. These books deal with religiously
motivated conduct, even if it is not part of ordinary ritual life.38 When these
books are added to the first twenty books of the Muwaṭṭaʾ, the proportion
of texts dealing with ritual law increases to approximately 43% of the book
by word count39 and approximately 51% by text count.40
Given the centrality of ritual to the Muwaṭṭaʾ, it is understandable that
one might choose to describe this work as a book of religious law. However,
the rest of the book, with the exception of its concluding chapter, deals with
matters that lie squarely within what would conventionally be understood
to be “secular” law: inheritance (3%); manumission of slaves (7%);
marriage, divorce, and fosterage by suckling (raḍāʾa) (9%); sales (10%);
judicial rulings (7%); preemption rights (1%); agricultural partnerships
and the lease of agricultural land (1%); investment partnerships (3%);
acts of battery (4%); collective oaths (1%);41 scripturally determined
F
criminal penalties (3%); and inebriating beverages (<1%).42 The last
chapter of the Muwaṭṭaʾ, the Book of Miscellaneous Matters (9%), consists
O
of heterogeneous materials that include, among other things, anecdotes
regarding the virtues of Medina and of the early Muslim community that
made its home there, eschatological tales, and elaboration of various
O
practices that were closely identified with Muslim identity, even if they
did not rise to the status of legal obligations. The chapter concludes with a
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text affirming the world-historical role of the Prophet Muḥammad and, by

implication, that of his community.
The shortest chapter of the Muwaṭṭaʾ is Book 4, Forgetfulness in Prayer
(170 words). The longest is Chapter 20, the Book of Pilgrimage (29,000
words). The Book of Sales, however, is nearly as long, with almost 26,000
words. Indeed, secular topics, in the aggregate, cover approximately 50%
of the book by word count, a fact that complicates characterization of the
Muwaṭṭaʾ as a work of religious law.
37 The number of reports included through the end of Book 20 is 1,283 according to the enu-
meration of the RME.
38 These chapters deal with rules governing warfare with non-Muslims (jihād), religiously
motivated sacrifices (ḍaḥāyā and ʿaqīqa), the sacrifice of domesticated animals for ordinary
consumption (dhabāʾiḥ), hunting wild animals (ṣayd), and vows (nudhūr).
39 Books 21–26 contain approximately 15,000 words in total.
40 Books 21–26 include 165 texts.
41 A special procedure used to determine either guilt or liability in cases of unlawful killing
when direct evidence of guilt or liability is unavailable.
42 The percentages referenced in this context are approximations based on word count, not
number of texts.

To understand the kinds of authority Mālik draws on in the Muwaṭṭaʾ,

some scholars have resorted to tallying the numbers of the different
kinds of texts found in the Muwaṭṭaʾ,43 but because the texts’ lengths can
vary dramatically, we believe a better measure of the relative importance
of different kinds of texts is their length relative to the total size of the
book. Furthermore, it is important to use an appropriate taxonomy of the
Muwaṭṭaʾ’s texts. We have divided all the texts that appear in the Muwaṭṭaʾ
into six categories:
• historical texts
• texts in which Mālik uses the term amr
• texts in which Mālik uses the term sunna
• texts that refer to the concept of practice (ʿamal), expressly or implicitly
• texts in which Mālik adopts one rule out of an unspecified set of
potential rules solely because he prefers that solution, usually
describing it as “the best” (istiḥsān) of the proposed solutions44
F
• rules that Mālik articulates in his own personal voice and that appear
to represent his personal legal reasoning (ijtihād)
O
Some explanation of these categories is in order. A text is classified as
historical if it purports to have been transmitted from an earlier generation,
whether or not it is represented as originating with the Prophet Muḥammad.
O
Usually, these texts are preceded by a chain of transmitters, although in

many cases Mālik omits the chain and simply introduces a historical report
PR
by saying, “It reached me (balaghanī) . . .”

The second category of texts—amr texts—includes texts that describe
a rule using the Arabic term amr, whatever its subsequent qualifications.
According to Wymann-Landgraf, a rule described with this term originates
in an exercise of discursive legal reasoning (ijtihād), and so Mālik also
signals the degree to which the proposition enjoys general assent in his
community by qualifying the amr with various descriptors. These texts thus
convey rules that both are derived from discursive legal reasoning and enjoy
43 For example, Wael Hallaq, in rejecting Schacht’s argument that Mālik did not recognize the
authority of Prophetic traditions and instead favored local traditions representing the “liv-
ing sunna,” stated that “Mālik’s Muwaṭṭaʾ . . . contains 898 Companion reports, but as many
as 822 for the Prophet alone.” Wael Hallaq, The Origins and Evolution of Islamic Law (New
York: Cambridge University Press, 2005), 106. Without knowing either the proportion of the
whole work represented by these numbers or the relative lengths of the different types of
texts, however, it is difficult if not impossible to determine the relative weight of each kind of
text in the overall structure of the Muwaṭṭaʾ.
44 Because Mālik uses the elative form of the word “good” (aḥsan) or “beloved” (ahabb) in these
circumstances to justify his choice of rule, we have, for convenience, tallied such choices as
instances of istiḥsān insofar as they are, quite literally, justified by virtue of Mālik’s conclu-
sion that the chosen rule is “better” or “more beautiful” or “more beloved” than the other
possible solutions.

28 Al-Muwaṭṭaʾ
a certain degree of public recognition. When he describes a norm as al-amr

ʿindanā, Mālik intends to communicate that the norm in question enjoys
substantial support but is not without important detractors. We translate
this expression as “the rule in our view.” With al-amr al-mujtamaʿ ʿalayhi
ʿindanā, Mālik means a norm that has nearly universal but not complete
support in Medina. We translate that expression as “the agreed-upon rule
among us.” For a rule that apparently enjoys unanimous support, Mālik uses
the expression al-amr alladhī lā ikhtilāfa fīhi ʿindanā, meaning that there are
no known dissenters to the rule. We translate the expression as “the rule
about which there is no dissent among us.” There are various other qualifiers
that Mālik uses to describe legal principles, but they are all included within
the broad category of amr terms—rules derived through discursive legal
reasoning that have gained a significant degree of public recognition.
The third category of texts—sunna texts—comprises texts that describe
a rule using the Arabic term sunna. According to Wymann-Landgraf, in
Mālik’s usage a rule of this type originates in an authoritative past decision
F
that cannot be justified through the exercise of discursive legal reason and
thus may be reasonably compared to a statute. A sunna rule may or may not
O
come from a decision of the Prophet Muḥammad,45 but its crucial feature
is that unlike an amr rule, it places boundaries on discursive reasoning
and is inconsistent with the conclusions that discursive legal reasoning
O
would reach.46 Because the normativity of a sunna rule is based on history,

we have translated it as a “long-established ordinance” to distinguish it in
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English from a rule derived through discursive legal reason. Like the term
amr, however, it may be qualified by a subsequent phrase, as in al-sunna
ʿindanā, which we translate as “the long-established ordinance among
us,” or al-sunna allatī lā ikhtilāfa fīhā ʿindanā, which we translate as “the
long-established ordinance about which there is no dissent among us.”
Unlike amr, sunna is sometimes used in an absolute sense, in which case
we translate it simply as “the long-established ordinance.”47 The statute-like
quality of a sunna rule is also reflected in a qualification that is unique to
it and not applied to amr rules, namely, the expression maḍat al-sunna.
Mālik’s use of the past tense of the verb maḍā, which means “to proceed” or
“to issue,” corroborates the intuition that a sunna rule is based on a decision
45 Wymann-Landgraf argues that a sunna rule may have originated in a decision of the Prophet
Muḥammad, in the precedent of one of the early caliphs, or even in events prior to Islam.
Wymann-Landgraf, Mālik and Medina, 4–5.
46 Wymann-Landgraf, Mālik and Medina, 5 (“the sunna-terms are systematically contrary to
analogy with related Medinese precepts of law”).
47 An example is hadith no. 248 of the RME. Significantly, after stating the rule, Mālik cites a
Prophetic tradition in support of it.

made at a discrete moment in the past.48 Because the grammatical subject

is sunna—the rule itself—the phrase does not disclose who the decision
maker was. We have therefore translated the expression maḍat al-sunna as
“it has long been the established ordinance that . . .”
The fourth category of texts—practice (ʿamal) texts—raises interpretive
issues not present in the prior three categories. Although the later Islamic
tradition emphasizes Mālik’s commitment to the “practice of the people
of Medina” as a distinctive feature of his jurisprudence, he did not use the
term ʿamal or any cognate term systematically to describe rules in the
Muwaṭṭaʾ in the manner he did with the previous terms, amr and sunna.49 It
most commonly shows up in a negative sense, as in the expression “practice
does not accord with this” (laysa ʿalā hādhā al-ʿamal).50 Mālik sometimes
uses this phrase or an equivalent one when he rejects what might at first
glance appear a plausible candidate for a rule. In such a case, the absence
of sociological evidence that the rule is followed corroborates the legal
conclusion that, despite its initial plausibility, the potential rule is not, in fact,
F
normative. Positive appeals to practice as proof that something is a rule are
more difficult to detect, but we have identified several phrases that Mālik
O
uses to endorse particular rules as effectively practice-based. Some of these
phrases are as follows: “This is the rule that I found both the people and the
learned of our town following” (al-amr alladhī adraktu ʿalayhi al-nās wa-ahl
O
al-ʿilm bi-baladinā); “That is the rule that the people of knowledge in our
city have always followed” (wa-dhālika alladhī lam yazal ʿalayhi ahl al-ʿilm
PR
bi-baladinā); “It has always been the case that” (lam tazal). Accordingly, any
rule that Mālik justifies by reference to a sociological fact we have classified
as falling into the fourth category of practice (ʿamal).
We chose to describe the fifth category of texts as istiḥsān even though
Mālik does not use that term anywhere in the Muwaṭṭaʾ. The term istiḥsān
is derived from the Arabic root ḥ-s-n, which denotes beauty or goodness.
In later juristic discourse, it is associated with the jurist’s preference for
one rule over another, often in circumstances in which the application of
strict analogy would lead to a result that the jurist finds contradictory to the
spirit of the law. Accordingly, modern scholarship has sometimes translated
48 See M. M. Bravmann, The Spiritual Background of Early Islam (Leiden: Brill, 2009), 148 (“It
should be especially stressed that the phrase maḍat-i s-sunnatu bi [or: maḍat sunnatun bi],
far from reflecting the concept of ‘the continuous practice of the community [the custom of
the Muslims of the past],’ as Schacht had assumed . . . , precisely emphasizes the character of
the sunnah as ‘a procedure created by an individual personality.’”).
49 Wymann-Landgraf notes that despite the importance of practice to understanding the
Muwaṭṭaʾ, “explicit references to it are rare”; Mālik and Medina, 71. Practice most com-
monly appears in the titles of sections within the book’s chapters, where it is used a total of
twenty-nine times, mostly in connection with matters of ritual law. Ibid., 400.
50 See, for example, Wymann-Landgraf, Mālik and Medina, 384.

30 Al-Muwaṭṭaʾ
it into English using terms such as “equity” or “juristic preference.” The

detractors of istiḥsān in the Islamic tradition frowned on its use or rejected
it outright on the grounds that it substituted the subjective preference of the
jurist for the objective evidence provided by revelation. Indeed, as already
mentioned, Shāfiʿī authored a treatise titled “The Invalidation of Istiḥsān”
(Ibṭāl al-istiḥsān).51 Mālik, however, is widely understood to have endorsed
istiḥsān wholeheartedly, to the point that later Mālikī jurists commonly
quote him as having said, “Istiḥsān is nine-tenths of [legal] knowledge.”52
Although later Mālikī jurists associated istiḥsān closely with the idea of
well-being (maṣlaḥa),53 that is not the sense in which we are using it here.
Rather, we classify a text as falling into the category of istiḥsān whenever
Mālik expressly endorses the rule contained in the text on the basis of its
inherent beauty or goodness. He takes this approach in situations in which
he is apparently aware of numerous possible solutions to a legal problem
and chooses one of them, calling it either the best (aḥsan) of the proposed
solutions or the one he himself prefers (aḥabb ilayya).
F
The sixth and last category of texts consists of rules based on Mālik’s
personal use of legal reason. This categorization reflects the fact that a rule
O
of this type is articulated in Mālik’s own voice and is usually preceded by
an explicit question directed to him: “Mālik was asked . . . Mālik replied
. . .” More rarely, these texts appear in exegetical contexts in which he is
O
explaining the meaning of a historical text.54

Based on the preceding taxonomy, the aggregate breakdown of the
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Muwaṭṭaʾ’s texts55 is as follows:
51 It should be noted that Shāfiʿī used istiḥsān in a much broader sense than did later Muslim
jurisprudence to refer to a variety of non-analogical juristic arguments, including preclusion
or “blocking the means” (sadd al-dharīʿa).
52 Later Mālikī jurists regularly attribute this statement to Mālik. See Aḥmad al-Raysūnī, Naẓar
iyyat al-maqāṣid ʿinda al-Shāṭibī, 4th ed. (Herndon, VA: International Institute of Islamic
Thought, 1995), 70. The earliest Mālikī text that supports the attribution is the Mustakhraja
of ʿUtbī, one of the foundational texts of the school. See Ibn Rushd, al-Bayān wa’l-taḥṣīl, 4:155
(quoting Aṣbagh, an early follower of Mālik, as saying, “Istiḥsān is more common in the law
than analogy is, and I heard Ibn al-Qāsim say—and he would attribute it directly to Mālik—
that Mālik would say, ‘Nine-tenths of the law is istiḥsān’” [al-istiḥsān fī al-ʿilm yakūn aghlab
min al-qiyās wa-qad samiʿtu Ibn al-Qāsim yaqūl wa-yarwī ʿan Mālik annahu qāla tisʿat aʿshār
al-ʿilm al-istiḥsān]).
53 Raysūnī, Naẓariyyat al-maqāṣid, 70 (istiḥsān means taking into account well-being, maṣlaḥa,
and fairness, ʿadl); Wymann-Landgraf, Mālik and Medina, 15.
54 See, for example, hadith no. 48 of the RME, where Mālik opines that one may perform ablu-
tions in preparation for praying with water out of which a cat drank, unless one saw that the
cat’s mouth contained something that was impure, such as the blood from something that it
had killed.
55 The percentages were calculated on the basis of word count, not number of reports. The total
exceeds 100% because some reports incorporate more than one kind of argument and were
thus included in more than one category.

Historical Istiḥsān Personal

texts Amr texts Sunna texts ʿAmal texts texts ijtihād texts
55% 11% 3% 5% 3% 26%
At first glance, this taxonomical breakdown of the Muwaṭṭaʾ’s texts

seems to vindicate scholars such as Dutton and Calder who have described
the Muwaṭṭaʾ as primarily a work of hadith, in which Mālik himself
appears incidentally and only as a commentator.56 But if one considers the
distribution of these texts across the chapters of the Muwaṭṭaʾ, a different
picture emerges. Some chapters are predominantly historical, whereas
others barely include any historical material whatsoever. For example, the
two chapters with the greatest amount of historical material are the Book
of Pilgrimage, which contains approximately 20,000 words of historical
reports, and the Book of Miscellaneous Matters, with approximately 22,000
words of historical reports. These two books contain approximately 16%
of the Muwaṭṭaʾ’s historical materials. Yet even that number conceals
F
important differences between these two chapters. Despite the heavy
emphasis on the historical past in the Book of Pilgrimage, approximately
O
40% of the chapter’s content consists of texts from the other five categories,
with Mālik’s personal opinions representing approximately 24% of the
O
chapter. By contrast, approximately 96% of the Book of Miscellaneous
Matters consists of historical reports. At the other extreme, only 6% of the
Book of Investment Partnerships consist of historical reports, and 76% of
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its texts convey Mālik’s personal legal reasoning. It would stretch credulity
to describe Mālik’s personal legal reasoning in this case as exegetical since
he hardly included any historical material that would call for exegesis. A
chapter with a distribution in the middle of these extremes might be the
Book of the Alms-Tax, of which approximately 33% is historical material,
39% is Mālik’s personal legal reasoning, 9% is amr rules, 7% is istiḥsān
rules, 7% is ʿamal rules, and 4% is sunna rules.
To understand the Muwaṭṭaʾ’s jurisprudence, therefore, it is not enough
to describe, in the abstract, a generic approach based on a theoretical
relationship between authority and legal reason without taking into account
the legal context. The distribution of different kinds of texts indicates
that Mālik clearly believed that certain kinds of arguments had greater
salience in different areas of the law. It should not come as a surprise, then,
that historical materials make up a substantial portion of sections of the
Muwaṭṭaʾ dealing with matters that either fell squarely within ritual law
56 Dutton, Origins, 27 (describing the Muwaṭṭaʾ as a book of hadith); Calder, Studies, 8 and 23
(describing the Muwaṭṭaʾ as based on “apostolic authority,” with texts of authority figures
coming first, followed by Mālik’s exegesis of those texts).

32 Al-Muwaṭṭaʾ
or functioned as identity markers in the early Muslim community; and it

is likewise not surprising that the relative importance of historical reports
declines sharply as one moves to areas of the law connected to more
conventional legal topics, such as sales, inheritance, and property. If, as
we have suggested, amr rules are most relevant in contexts characterized
by a need for a common understanding, it makes sense that they would
appear with relatively high frequency in the Book of Sales (24%) and the
Book of Judicial Rulings (27%). Similarly, because sunna rules function as
the equivalent of statutory norms that preempt the ordinary operation of
systematic discursive legal reason, it is understandable that the chapter
with the largest number of sunna rules in absolute terms is the Book of
Judicial Rulings (11% of the chapter and containing 1,924 words in total).57
The aggregate breakdown of the texts of the Muwaṭṭaʾ, though, is
revealing in one important way: much contemporary scholarship assumes
that Mālik was merely a representative of the Hijazi school of law, and that
the Muwaṭṭaʾ is simply a reflection of the median view of the law from the
F
perspective of the Medinese. But these conclusions are clearly not tenable
when one considers the Muwaṭṭaʾ in its entirety. There can be no denying
O
that Mālik’s voice in the Muwaṭṭaʾ—at least in the recension of Yaḥyā—is
that of an independent legal authority, in some areas of the law if not in
all of them. The notion that Mālik held a communitarian conception of the
O
law58 in contrast to the more individualistic orientation that Shāfiʿī would

propose must accordingly be modified in light of the fact that some areas of
PR
the law in the Muwaṭṭaʾ appear to be derived almost entirely from Mālik’s
own reasoning, and in most of the Muwaṭṭaʾ’s chapters his voice is distinct
from both the community’s history and the community of scholars.
At the same time, Mālik’s heavy reliance on amr terms and sunna terms
reveals a jurisprudential theory that was substantially different from the
one that Shāfiʿī proposed and that would revolutionize Islamic law in later
centuries. Although Wymann-Landgraf is certainly correct that Schacht
was mistaken in believing that Shāfiʿī’s theory of the four sources became
the universal theory of law among Sunnīs, the fact that post-Mālikī jurists
formally retained a broader set of sources than that recognized by Shāfiʿī
does not capture what we believe lay at the heart of Shāfiʿī’s revolution
against the kind of law Mālik advocated. For Shāfiʿī and the Muslim jurists
who came after him, regardless of school, law was now a science, modeled
along the lines of theology,59 in which the legal scholar was assumed to
57 Other chapters display much higher proportional reliance on sunna rules. The chapter with
the highest proportion of sunna texts (23%) is the Book of Pious Seclusion, a supererogatory
practice associated with fasting.
58 El Shamsy, Canonization, 84.

be investigating the legal implications of the ontological reality of divine

speech.60 Although jurists could reasonably disagree about the content of
divine speech and its legal implications, in principle only one interpretation
was correct. Indeed, because the study of law was now conceived of as a
science, it was possible for one jurist to be correct and the rest of the juristic
community to be wrong.61 By contrast, it appears that although Mālik
believed that there were correct and incorrect interpretations of the law, he
understood the law to be a project immanent to the Muslim community, and
so its legal deliberations were political (broadly understood), not scientific.
For that reason, Mālik included in his book numerous historical reports of
the decisions of Umayyad-era political authorities.
In the Muwaṭṭaʾ, discursive legal reasoning was the tool-in-trade of the
jurist, but it operated within limits established by historical authority, and
even systematic legal reasoning was shaped by considerations of well-being
and the public good rather than strict analogy. It is no coincidence,
therefore, that there has been renewed interest in Mālikī jurisprudence
F
given contemporary Muslims’ interest in maṣlaḥa (the common good) and
the closely related notion of maqāṣid al-sharīʿa (the purposes of the divine
O
law) as a method of legal reform.62 At the same time, the history of Mālik’s
jurisprudence as found in the Muwaṭṭaʾ and the fact that it rapidly became
obsolete under the ʿAbbāsids suggest that the kind of jurisprudence Mālik
O
followed in the Muwaṭṭaʾ was dependent on a particular set of institutions

that might have been appropriate for a small city-state but were not scalable
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when Islam became the religion of a cosmopolitan empire and its followers
were no longer limited to a conquering Arab elite.
This fact helps explain why later Mālikīs abandoned the elaborate termi-
nology of the Muwaṭṭaʾ.63 Although the Muwaṭṭaʾ remained an important text
because of its connection with the school’s putative founder, its importance for
later Mālikīs was more sentimental than substantive. Saḥnūn’s Mudawwana,
a work that approached the law as a science, became the foundational text of
Mālikī jurisprudence. Saḥnūn’s goal in that work was to identify, whenever

61 El Shamsy is almost certainly correct when he describes Shāfiʾī’s theory of the law as grounded
in metaphysical realism; Canonization, 82. Two centuries later, after theoretical jurisprudence
became firmly established as a discipline distinct from positive law, Muslim jurists and theo-
logians would split into two camps on the question of metaphysical realism, with one group
endorsing the notion that the goal of legal reasoning (ijtihād) was to obtain true metaphysi-
cal knowledge of the content of the divine law and the other denying that legal rules derived
through interpretation had any connection to metaphysical reality. The former were known as
the “fallibilists” (mukhaṭṭiʿa) and the latter as the “infallibilists” (muṣawwiba).
62 See, for example, Felicitas Opwis, “Maṣlaḥa in Contemporary Islamic Legal Theory,” Islamic Law
and Society 12, no. 2 (2005): 182–223 (giving an overview of the history of maṣlaḥa in medieval
Islamic theoretical jurisprudence and its reception by contemporary Muslim legal scholars).
63 Wymann-Landgraf, Mālik and Medina, 274 and 289 n. 50.

34 Al-Muwaṭṭaʾ
possible, Mālik’s opinion on a wide range of legal questions; when that was
not possible, to reconstruct it based on the views of his various students; and
when even that was not possible, to derive, through conjecture, what Mālik
would have said about the question had it been posed to him. While Saḥnūn’s
deference to Mālik’s views would no doubt have prompted objections from
Shāfiʿī and his followers, Saḥnūn seemed to share Shāfiʿī’s assumption that
the goal of legal science is to obtain true knowledge of an ontological reality
disclosed through the vehicle of divine speech. The only difference between
the two would have concerned the question whether such truths could be
obtained indirectly through deference to the views of a great scholar such as
Mālik, or whether a jurist had to consider the evidence provided by divine
speech independently for himself.64
In reading the Muwaṭṭaʾ, it is crucial to remember that although scholars
may disagree as to why it took the form that it did, there is no dispute that
Mālik did not intend it to be an exhaustive statement of the law. Many of its
texts make sense only on the assumption that the reader is already familiar
F
with basic principles of Islamic law. There is also a temptation to view the
work as a mere primer on the foundational elements of Medinese law in the
O
time of Mālik, functioning as an introduction to the weightier work, Saḥnūn’s
compilation of Mālik’s legal teachings.65 The fact that the Mudawwana
certainly includes more cases than the Muwaṭṭaʾ does not, on its own, mean
O
that the cases discussed in the Muwaṭṭaʾ are basic or rudimentary. To the
contrary, many of the cases Mālik addresses are quite intricate and require
PR
a relatively advanced level of legal education to understand. For this reason,

we have included a substantial amount of commentary in the notes in an
attempt to make the stakes at issue clear to nonspecialist readers. Although
it may very well be the case that Mālik intended the Muwaṭṭaʾ to serve as a
restatement of the basic principles of Medinese law, that in no way implies
that the Muwaṭṭaʾ is a book for beginners in legal science. In fact, familiarity
with a broad range of legal principles is very helpful to comprehend the
text, its arguments, and the positions it takes on a variety of questions.
We believe that this translation of the Muwaṭṭaʾ offers readers a window
into what is now an archaic period of Islamic law, and that it will make this
important work of legal history available to a much wider audience.
64 Ibn Farḥūn (d. 799/1396) quoted Saḥnūn as saying, “I heard Ibn al-Qāsim say, ‘I have gladly and
contentedly accepted Mālik b. Anas for the good of my soul, and I have placed him between me
and Hell.’ . . . And I have gladly and contentedly accepted Ibn al-Qāsim for the good of my soul,
and I have placed him between me and Hell.” Ibn Farḥūn, Tabṣirat al-ḥukkām fī uṣūl al-aqḍiya
wa-minhāj al-aḥkām, 2 vols. (Cairo: Maktabat al-Kulliyyāt al-Azhariyya, 1986), 1:70.
65 Wymann-Landgraf, Mālik and Medina, 71–73 (suggesting that the Muwaṭṭaʾ lays out the
foundations of Mālik’s legal reasoning, along with that of the Medinese more generally, and
thus “lays the groundwork for the Mudawwana”).

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Introduction to the English Language Translation

of the Muwaṭṭaʾ of Imam Mālik b. Anas,

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Biography of Mālik b. Anas and His Place in the Sunnī Tradition

al-Manṣūr (r. 136–58/754–775), the cultural center of gravity of the

deliberations that took place in small gatherings of jurists. Although many

notes or via oral transmission, the generations of Muslim scholars before

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“edition” Mālik prepared of the Muwaṭṭaʾ.4 In any case, Yaḥyā’s recension of

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Tunisia, the Mudawwana consists largely of a series of dialogues between

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The Place of the Muwaṭṭaʾ in Modern Scholarship

should be deemed fabrications unless proven otherwise. Instead of viewing

11 Ignaz Goldziher, Muslim Studies (London: Allen and Unwin, 1971).

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Unsurprisingly, Muslim scholars have reacted to such claims impeaching

Muḥammad, known as muḥaddithūn or ahl al-ḥadīth). According to Azami,

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Whatever one’s views regarding the dating of Muslim traditions generally

moreover, is well known in the Islamic tradition, which itself broadly

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formal set of jurisprudential principles that could justify substantive legal

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consensus of the Muslim community (ijmāʿ)—and one method of reasoning,

Prophet Muḥammad that lacked a complete chain of transmitters attesting

names of all the intermediary transmitters of the report between himself

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he will suffer confusion if he has no means to determine whether the

contradicts or otherwise qualifies the report’s teachings. However, Shāfiʿī

the Prophet that were commonly thought to contradict other traditions

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form of complete chains of transmitters whom the Muslim community

not the dominant, source of Islamic law.

Shāfiʿī’s theory was not original insofar as he recognized the validity of

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good (al-maṣlaḥa al-mursala) in formulating legal rules without grounding

Muslim is not in Mecca, he is obliged to infer the direction of the Kabah

indicants to determine, to the best of his or her ability, the direction in

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Modern scholars’ view of Shāfiʿī’s contribution to Islamic jurisprudence

small numbers of individuals. According to Schacht, Shāfiʿī’s powerful

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increasingly difficult, if not impossible, to adapt to changing circumstances,

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Muwaṭṭaʾ, Wymann-Landgraf argues convincingly that Mālik developed

The legitimacy of such practice could not be doubted simply because

the transmitters of that report were otherwise reliable. Mālik’s notion

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legal analogy. Accordingly, the notion of practice cannot be equated with a

resulted in the transfer of religious authority from the community of

of revelation. The result was a sharp demarcation between the sacred

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Overview of the Muwaṭṭaʾ

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of Miscellaneous Matters. Each book is typically divided into one or more

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book’s length if measured as a proportion of the total number of texts