By Janina Safran
In this essay, I illustrate the methods of juridical thinking and argumentation at the highest level among Mālikīs in al-Andalus in the early sixth/twelfth century. One aim is to demonstrate the refinement of expertise in jurisprudence. Another is to demonstrate the continued authority of the Mālikī masāʾil (sg. mas’ala), that is, the legal opinions of Mālik (d. 179/796) and his students preserved in the so-called mother texts.
The Cordoban Mālikī jurist and Almoravid-era judge Ibn Rushd al-Jadd (d. 520/1126) aspired to reform the practice of Mālikī jurisprudence and enhance the authority of the madhhab (school of law) through his teaching and writing. Two of his major works systematically review opinions in the Mālikī mother texts with methods of analysis and texts associated with uṣūl al-fiqh (the sources and principles of jurisprudence) and uṣūl al-dīn (the sources and principles of religion, or theology). Al-Bayān wa’l-taḥsīl (The Explanation and Elucidation) is a commentary on al-ʿUtbī's (d. 254/868) Mustakhraja (Extractions), and al-Muqaddamāt al-mumahhidāt (The Preparatory Introductions) is a commentary on al-Mudawwana (The Compilation).[1]
In his commentaries and in many of his legal opinions, Ibn Rushd sought to clarify points of differences among the Mālikī masāʾil, if not definitively, then more substantively. In this essay, I return to the mas’ala of ablutions with the faḍl and the su’r of the Christian.[2]
Recall the first topic of the Mustakhraja in the chapter on ablution:
From the Book of the Qibla (direction of prayer) from Ibn al-Qāsim's [d. 191/806] audition (samāʿ) of Mālik. Saḥnūn [d. 240/854] said, Ibn al-Qāsim told me, I heard Mālik say, I do not think that anyone should perform ablution with what remains (faḍl) of the ablution of the Christian. As for the backwash remaining after he has drunk (bi-suʾrihi min al-shirāb), I think there is no objection. Ibn al-Qāsim said that he [Mālik] disapproved of it more than once. Saḥnūn said, if you are confident that he [the Christian] does not drink wine or eat pork, then there is no objection to performing ablutions with it, whether out of necessity or not.[3]
Ibn Rushd seems to speak to us as well as his medieval readers in his introduction when he writes of the above:
He [Mālik] said that ablution should not be performed with the leftover from used water (faḍl) of the Christian's ablution, but he did not clarify what the faḍl is, since the Christian is not among those who perform ritual ablution. He did not clarify the legal reason for the prohibition or whether the prohibition applies when other water is available or not. He did not say what is required of the person who performed ablution with the faḍl and prayed, in either case. He did not say whether he should perform dry ablution (tayammum) if he finds no other water or explain why that may be permitted or prohibited, and the consequences if he did one or the other. He did not clarify the reason for the distinction between the Christian’s backwash (su’r) and faḍl and it is not clear whether in his view they are equivalent or not. Similarly, one needs to understand Saḥnūn's statement qualifying the Christian's backwash according to whether one is sure that he has not eaten pork or drunk wine. Is this opinion one of disagreement (khilāf) with one or both of Mālik's opinions, or an elucidation (tafsīr) of both?[4]
Ibn Rushd’s commentary begins with a lexicographical definition: “What Mālik means by the faḍl of the Christian’s ablution is what remains of the water with which he washed his hands or the rest of his body for cleansing or cooling.”[5] The one ḥadīth Ibn Rushd cites in the discussion of this mas’ala supports the definition of wuḍūʾ(ritual ablution). He reports from al-Ḥasan al-Baṣrī, (d. 110/728): “Washing (wuḍūʾ) before food drives away poverty, and after it drives away mental disturbance,” a statement Ibn Rushd says is “of a type that can only be traceable back to the Prophet.”[6]
Ibn Rushd locates the reason behind Mālik’s disapproval of performing ablutions with the faḍl of the Christian within the latter part of his statement in the Mudawwana: “Mālik said, do not perform ablution with the backwash of the Christian or with what he puts his hand in.” As he explains, one interpretation based on Ibn al-Qāsim’s statement in the Mudawwana is that Mālik treats the Christian’s hand as almost certainly impure because he uses it to touch his body, its impurities, and other impurities. Since he is not aware of such impurities, he does not remove them from his hand. Thus, a person should not perform ablutions with the faḍl of the Christian's ablution whether other water is available or not. One should perform tayammum and repeat the prayer if ablutions were performed. Another interpretation of Mālik’s thought, he observes, which Ibn Ḥabīb (d. 238/853) adopted, is that in a circumstance where one is uncertain of the impurity of the Christian’s hand, one should not perform ablutions with his faḍl if other water is available, out of caution. In this view, if no other water is available, one may use the water for ablution and does not need to repeat the prayer, as it is not established with certainty that the Christian’s hand is impure, and one should not resort to tayammum except with certainty.
As Ibn Rushd observes, we can see that al-ʿUtbī’s text attributes two varying opinions to Mālik about performing ablutions with the backwash of a Christian: no objection, and disapproval. If there is no objection, Ibn Rushd explains, then it is permissible to use it when other water is available and required to use it when other water is not available, without needing to repeat prayer. Mālik’s disapproval, on the other hand, has different implications: ablutions in this view should only be performed with the backwash of a Christian if no other water is available. Ibn Rushd explains that the rationale for Mālik’s “no objection” opinion is that saliva removes any impurity from a person’s mouth, whereas his disapproval treats the backwash as neither pure nor impure.[7] Ibn Rushd clarifies that Saḥnūn’s opinion is not “no objection,” but rather disapproval (like Mālik’s disapproval of performing ablutions with a Christian’s faḍl).[8] He points out that the Mudawwana equates the backwash of a Christian with “what he puts his hand in” and Saḥnūn expresses a presumption of impurity with the implication that ablution should not be performed with the backwash of a Christian, whether or not other water is available. If no other water is available, tayammum should be performed. If ablution was performed, in either case, prayer should be repeated within the appropriate time. Ibn Rushd explains that the evidence for Saḥnūn’s opinion (of disapproval) that prayer should be repeated within the appropriate time lies in his statement that “if you are confident that he [the Christian] does not drink wine or eat pork, then there is no objection to performing ablutions with it, whether out of necessity or not.”[9] The inverse is that if you are not certain of this, you should not perform ablution with the Christian’s backwash, regardless of whether doing so is out of necessity. Ibn Rushd indicates that Saḥnūn further clarifies the presumption of impurity in response to a question about ablution with the backwash of a Christian cited elsewhere in the Mustakhraja. In that opinion, Saḥnūn asserts that one should perform tayammum and not perform ablutions with a Christian’s backwash, comparing the Christian to a dog who wanders around filth and najāsa (impurity).[10]
Ibn Rushd clarifies the points of agreement and disagreement in the opinions cited above. First, he establishes the points of agreement: if one knows with certainty the purity (ṭahāra) of the Christian’s hand and mouth, then performing ablution with his backwash and leftover used water is permissible.[11] If one knows with certainty the impurity of hand and mouth, then it is not permissible, even if no other water is available. The differences of opinion arise with uncertainty about purity or impurity. Some say that backwash and leftover used water are presumptively pure; some say both are impure, and some would treat backwash as pure and “what he puts his hand in” as impure; still others simply dislike using backwash and consider it neither pure nor impure.[12]
Ibn Rushd elaborates further, identifying the point of difference between Mālikī jurists of the “Egyptian” tradition, following Mālik’s Egyptian students, and the “Medinans,” those who privileged Medinan transmissions from Mālik. The Egyptians argue that a small amount of impurity renders a small amount of water impure, even if the properties of the water do not change (the questions posed about the leftover used water and backwash of the Christian in this mas’ala suggest Muslims and Christians using water from a single basin or contained body of water).[13] The Medinans, in contrast, do not consider water in any amount to be rendered impure by something impure, unless one of the qualities of the water (such as color, clarity, smell) changes.[14] They disapprove of performing ablutions with the leftover used water and/or backwash of a Christian when other water is available, out of regard for the difference of opinion, and consider it obligatory when no other water is available.[15]
Regarding the prayer of a Muslim who performs ablutions with the used leftover water and/or backwash of a Christian when other water is available, Ibn Rushd concludes that there are three opinions:
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- He does not need to repeat the prayer but should perform ablutions again before the next prayer;
- He should repeat ablutions and prayer within the time of prayer;
- He should repeat the prayer if he used water “he put his hand into” (e.g. leftover used water) but, if he used the backwash, he only needs to perform ablutions again before the next prayer.[16]
If no other water is available, there are two opinions:
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- He should perform ablutions with the water and not perform tayammum; if he performs tayammum, he should repeat the prayer;
- He should not use the water and perform tayammum.[17]
If he used the water, some say he should repeat the prayer within the time of prayer while others say this is not required. Some say prayer after ablutions with the leftover used water should be repeated but not after ablutions with the backwash.[18]
Ibn Rushd argued elsewhere that only a muftī (jurisconsult) with his level of expertise had the knowledge and ability to exercise independent interpretation (ijtihād) in order to offer an opinion on a new case that is not addressed by the madhhab.[19] The expert jurist’s (mujtahid) expertise comprised knowledge of the masāʾil and of the basis for their agreements and disagreements, as well as knowledge of the sciences of the Qurʾān and ḥadīth, and the reasoning methods of uṣūl al-fiqh and uṣūl al-dīn. In the discussion above, what stands out is Ibn Rushd’s breadth of knowledge about the masāʾil and his logical analysis of points of agreement and difference as well as their divergent branches. His commentary on al-ʿUtbī's Mustakhraja is a model of his achievement and offers guidance for those less qualified in interpretation of individual mas’alas by clarifying terms, putting opinions in the context of other authoritative sources and statements, and clarifying the reasons for divergences.
In Ibn Rushd’s view, jurists who were masters of the masāʾil and understood their points of difference and agreement but were not at the level of a mujtahid were qualified to give fatwās (legal responsa) on matters addressed in the corpus of masāʾil. His al-Bayān wa’l-taḥṣīl would enhance their capacity to do so. So, given Ibn Rushd’s discussion of the first mas’ala, how should a muftī who is asked about performing ablutions with water from a public trough or fountain used by both Muslims and non-Muslims reply? Compare the guidance offered here by Ibn Rushd with that provided by Ibn Abī Zayd in al-Nawādir wa’l-ziyādāt (The Rare Cases and Additions) in my second essay. Is there a wrong answer?
Ibn Rushd’s view of jurists who memorized one or more of the mother texts but did not have further training was that they could use them to guide their own behavior. In doing so, they could choose between multiple relevant opinions as they deem best, whether according to the situation, following the opinion of a specific authority (such as Ibn al-Qāsim), or opting for the most restrictive opinion out of caution.[20] According to him, they were not to give fatwās except in the absence of anyone more qualified, perhaps in an isolated and remote region. The meaning and relevance of opinions, Ibn Rushd both argues and demonstrates, depends on a broad and deep foundation of knowledge. At the same time, the authority of Mālik, Ibn al-Qāsim, Saḥnūn, and others, may be trusted implicitly.
In a way, Ibn Rushd’s hierarchy expresses the stages of learning of the aspiring mujtahid and stages in the development Mālikī jurisprudence between the third/ninth and sixth/twelfth centuries. Both start with the collection and memorization of masāʾil. From this foundation follows study of points of similarity and difference, and underlying principles and derivations. The next stage brings together deep knowledge of the masāʾil with legalistic understanding of the sacred sources and the logical methods of uṣūl al-fiqh and theology.
Perhaps a good way to conclude this series of essays is to consider the distance between Ibn Rushd and Aṣbagh b. Khalīl (d. 273/886) in terms of their learning and approach to jurisprudence, and how they were nonetheless partisans of a continuous Mālikī tradition of knowledge. Aṣbagh was a leading jurist in Cordoba for about fifty years and led the shūrā (advisory council). Ibn Ḥārith described him as a hāfiẓ li-madhhab Mālik: a great memorizer and master of masāʾil. He had little ʿilm al-ḥadīth or knowledge of transmitters. He might be described as belonging to Ibn Rushd’s second category of Mālikī jurists, as, “in addition to his excellent memory, he was adept at making analogies [between opinions] and differentiating [among them].”[21] Ibn Rushd’s definition of a mujtahid qualified to rule on new cases only begins to describe the scope of his own knowledge, but it does usefully characterize the highest standard among his peers. In his view, in addition to knowledge of the masāʾil, the mujtahid’s expertise included: 1) knowledge of the rulings of the Qur’ān, the verses that were abrogated and abrogating, qualifying and summarizing, general and specific; 2) knowledge of the legally relevant ḥadīths, and the distinction between the sound and the weak; 3) knowledge of the opinions of the learned Companions of the Prophet and Successors and after them the jurists in the garrison cities, and what they agreed upon and differed over; 4) knowledge of language and the expression of meaning; and 5) skill in the methods of analogy and the proper application of evidence.[22]
Notes:
[1] See Delfina Serrano Ruano, “Ibn Rushd al-Jadd (d. 520/1126),” in Islamic Legal Thought: A Compendium of Muslim Jurists, ed. David S. Powers et al. (Brill, 2013), 295–322.
[2] See my first and second posts in this series: Janina Safran, “How did jurists interpret and practice law in al-Andalus in the Umayyad period?,” Islamic Law Blog, June 9, 2026, https://islamiclaw.blog/2026/07/09/how-did-jurists-interpret-and-practice-law-in-al-andalus-in-the-umayyad-period/; Janina Safran, “Tenth-Century Approaches to Andalusī-Mālikī Legal Opinions (Masāʾil),” Islamic Law Blog, June 17, 2026, https://islamiclaw.blog/2026/07/17/tenth-century-approaches-to-andalusi-maliki-legal-opinions-masa%ca%beil/.
[3] Ibn Rushd al-Jadd, al-Bayan wa’l-taḥṣīl, ed. Muḥammad Hajjī (Beirut: Dar al-Gharb al-Islami, 1984–87), 1:33.
[4] Ibn Rushd, al-Bayan wa’l-taḥṣīl, 1:28. This is not a verbatim translation.
[5] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:33.
[6] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:33; The editor’s note observes that the ḥadīth, “The blessing of food is ablution before it and ablution after it,” is found in the collections of Abū Dāwūd, al-Tirmidhī, and Aḥmad Ibn Ḥanbal (n. 19). In the next mas’ala, Ibn Rushd cites the ḥadīth in which the Prophet responds to a question about water from the well of Buḍāʿa into which all manner of filth was thrown: “Truly, water is pure and is not defiled by anything.” He cites the ḥadīth as the basis of the madhhab’s consensus that the immersion of something impure in a large amount of water does not defile the water unless its qualities change; al-Bayān wa’l-taḥṣīl, 1:36.
[7] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:34.
[8] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:34–35.
[9] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:34–35.
[10] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:172–73.
[11] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:35.
[12] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:35.
[13] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:35.
[14] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:35.
[15] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:36. The jurist Ibn Ḥārith (d. 361/971), who I discuss in the second essay of this series, affirms the general position regarding the purity of water, without discussion of amounts, in his Uṣūl al-futyā (Foundations of Legal Opinion-Giving) and indicates that prayer is repeated if there is disagreement about the purity of a body of water. Muḥammad Ibn Ḥārith al-Khushanī, Uṣūl al-futyā fi al-fiqh al-Mālikī ʿalā madhḥab al-imām Mālik, ed. Muḥammad al-Majdūb, Muḥammad Abū al-Ajfān, and ʿUthmān b. Baṭikh, (n.p: al-Dār al-ʿArabiyya lil-Kitāb, 1985), 47–48. Safran, “Tenth-Century Approaches to Andalusī-Mālikī Legal Opinions (Masāʾil).”
[16] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:36.
[17] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:36.
[18] Ibn Rushd, al-Bayān wa’l-taḥṣīl, 1:36.
[19] al-Wansharīsī records Ibn Rushd’s fatwā in response to a question about the qualifications of muftīs in which he addresses the differences between a mujtahid and a muqallid and describes a hierarchy of knowledge and expertise among jurists, in al-Miʿyar al-Mughrib wa’l-Jāmiʿal-muʿrib ʿan fatāwa ʿulamā Ifrīqiyya wa’l-Andalus wa’l-Maghrib (Beirut: Dār al-Gharb al-Islāmī, 1981), 10:30–35. See the discussions by Wael B. Hallaq, in Authority, Continuity, and Change in Islamic Law, (Cambridge University Press, 2001), 2–7 and Mohammed Fadel in “The Social Logic Taqlīd and the Rise of the Mukhtaṣar,” Islamic Law and Society 3 (1996): 193–233.
[20] al-Wansharīsī, al-Miʿyar al-Mughrib, 10:33.
[21] Muḥammad Ibn Ḥārith, Ajbār al-fuqahā waʾl-muḥaddiṯīn, ed. María Luisa Ávila and Luis Molina, (Madrid: Consejo Superior de Investigaciones Científicos), 1992, no. 41.
[22] al-Wansharīsī, al-Miʿyar al-Mughrib, 10:33.
Suggested Bluebook citation: Janina Safran, Revisiting al-ʿUtbī’s Mustakhraja: Ibn Rushd al-Jadd's al-Bayān wa’l-taḥsīl (July 30, 2026), https://islamiclaw.blog/2026/07/30/revisiting-al-%ca%bfutbis-mustakhraja-ibn-rushd-al-jadds-al-bayan-wal-ta%e1%b8%a5sil/.
Suggested Chicago citation: Janina Safran, “Revisiting al-ʿUtbī’s Mustakhraja: Ibn Rushd al-Jadd's al-Bayān wa’l-taḥsīl,” Islamic Law Blog, July 30, 2026, https://islamiclaw.blog/2026/07/30/revisiting-al-%ca%bfutbis-mustakhraja-ibn-rushd-al-jadds-al-bayan-wal-ta%e1%b8%a5sil/.
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