By Janina Safran
Proto-Mālikīs in al-Andalus in the third/ninth century memorized, copied, transmitted, and studied opinions attributed to Mālik (d. 179/795) and his students (masāʾil, sg. masʾala). Proto-Mālikīs considered these masāʾil an authoritative foundation for responding to legal questions and determining legal judgments (aḥkām). The acquisition of learning required travel east to hear from Mālik’s students, and their students, and hearing and recording from other Andalusīs. A field of knowledge subsequently developed, ʿilm al-masāʾil, that involved both acquisition of masāʾil and principles governing their use. The masāʾil thus became the foundation of the madhhab (school of law), and their use through analysis and comparison became a renewing source of continuity.
In this essay, I describe and quote from the work of two fourth/tenth-century jurists, Muḥammad Ibn Abī Zayd al-Qayrawānī (d. 386/996) and Ibn Ḥārith al-Khushanī (d. 361/971) that address the challenge that the multiplicity of transmissions of masāʾil posed to Mālikī jurists in the Islamic West.[1]
In this period, Andalusī jurists did not necessarily have to travel east for study; if they did travel for pilgrimage and study, they likely spent some time in Qayrawān, and many studied with and transmitted to and from Ibn Abī Zayd. He compiled a voluminous collection of masāʾil, entitled Kitāb al-nawādir wa’l-ziyādāt ʿalā mā fī al-Mudawwana min ghayrihā min al-ummahāt (The Rare Cases and Additions to What is in the Mudawwana from Other Mother Books), as a supplement to the Mudawwana (The Compilation). In it, he drew on other compilations, including Muḥammad al-ʿUtbī’s (d. 254 AH/868) Mustakhraja (Extractions).
Ibn Abī Zayd explains in his preface that his goal was two-fold. First, he wanted to provide a comprehensive assembly of masāʾil. Second, he aimed to show how scholars following Mālik and his students elaborated on the opinions of their predecessors, sometimes clarifying differences of opinion and obscure statements.[2]
The following excerpt is from Ibn Abī Zayd’s chapter on ablution.[3] The title of the section is “On ablution and lustration with the water left over (faḍl) from a Christian and the ritually impure (junub) and that which has been rinsed in their mouths (su`r, or backwash), or what has been lapped by dogs, wild and domestic animals, and chickens, or with what has been used previously for ablution.” I quote the first part, having to do with the used water and backwash of a Christian.
From al-ʿUtbiyya [al-Mustakhraja]: Ibn al-Qāsim [d. 191/806] said, from Mālik: Do not perform ablution with the water that remains (faḍl) from the ablution of a Christian. There is no objection to using the faḍl of what he drinks. He [Mālik] disapproved of it more than once. Ashhab transmitted the same thing from him, as did Ibn Nāfiʿ in al-Majmūʿa [of Muḥammad b. Ibrāhīm Ibn ʿAbdūs, d. 260 /874].
Mālik said in both texts, “Do not perform ablution [with water] from the house of the Christian.” Ashhab said he disliked it.
Saḥnūn [d. 240/854] said, “If he was confident that the Christian did not drink wine or eat pork, then there was no objection to using what remains of his backwash, in case of need or not.”
Saḥnūn transmitted from Ibn al-Qāsim in al-ʿUtbiyya, “Whoever finds [available] only the backwash of a Christian should perform tayammum (ablution with sand); he [the Christian who drinks and backwashes water] is analogous to the roaming chicken or the dog who eats filth.”[4]
Abū Zayd [ʿAbd al-Raḥmān b. Abī al-Ghumr, d. 234/848] narrated from him [Ibn al-Qāsim] regarding a basin (or a pool of water) in the countryside that a Christian uses to wash himself. Can a ritually impure Muslim (junub) use water from it for ablution? He said, “It is not permitted for the junub to use the water for lustration (ghusl), because he is najis (impure, defiled). If he does not approach the basin when he is najis, and the Christian does not either, then there is no objection to performing ablution with it. If dogs or pigs drink from it, then he should not perform ablution with it.”
Ibn al-Qāsim and Ibn Wahb [d. 197/812] cited Mālik in al-Majmūʿa (The Collection): “If there was a lot of water in the basin and a Christian enters it and washes in it, using it for ablution does not please me (lā yuʿjibunī).”
Abū Zayd reported from Ibn al-Qāsim in al-ʿUtbiyya and in al-Majmūʿa that Ibn Nāfiʿ said to Mālik,[5] “Regarding ablution from the houses of Christians, perhaps they were slaves of the Muslims? He said, I disapprove of this; they are impure (anjās); they do not purify themselves.”
Ibn Ḥabīb [d. 238/853] said that he should not perform ablution with the backwash of a Christian or with what he puts his hand in, what comes from his house, or his containers, unless he is hard pressed. If he does it without such necessity, he does not need to repeat the prayer; let him perform the ablution for the next one. However, if he used the water from a Christian’s basin, he should first perform tayammum because of their [Christians’] immersion in it when they are impure. Muṭarrif and Ibn ʿAbd al-Ḥakam said the same.
Ibn Ḥabīb said, “He should not perform ablution with the backwash of a wine-drinker or [water from] his containers or from his house, due to the presence of wine.”[6]
The excerpt illustrates Ibn Abī Zayd’s point that the masāʾil inform each other. Assembled according to discrete legal topics, they have a casuistic quality, and the discerning student can follow the principles informing the elaborations. The opinions in this selection address concerns about the purity of water for ablutions and how a non-Muslim might affect that purity. The opinions distinguish between degrees to which “the Christian” is in contact with water that a Muslim might use for ablution and/or lustration. They discuss water that has been left over after a Christian rinses his mouth and drinks, water in which he puts his hand, water left over from a full body wash, water from a Christian’s house, and water from his containers. The principle that something najis contaminates water (in some amount) underlies the opinions—that something, such as wine and pork, may be in the mouth of a non-Muslim (as in the mouth of a chicken), or on his hand and body. Collectively, these masāʾil provide some guidance in understanding Mālik’s perspective (the madhhab’s perspective) and how to give an informed opinion about performing ablutions with water shared with Christians and other non-Muslims. Some questions may yet remain or arise for those who are not deeply immersed in the masāʾil.
Ibn Abī Zayd compiled al-Nawādir wa’l-ziyādāt as a tool for those who did not have his expertise or access to all the legal works he consulted. How would someone in a position to offer legal opinions use it? What about the person who did not have access to al-Nawādir wa’l-ziyādāt, perhaps earlier in the century, or an imām (prayer leader) or judge in a rural district or small town? Two later Andalusī jurists, al-Burzulī (d. 841/1438) and al-Wansharīsī (d. 914/1508), record fatwās (legal responsa) that Ibn Abī Zayd wrote addressing this kind of circumstance.[7]
Ibn Abī Zayd was asked about someone who was not deeply immersed in knowledge. Rather, he consulted al-Mudawwana, al-Muwaṭṭā [The Well-Trodden Path], and al-Mukhtaṣar [The Compendium] and this sort of work. He was asked about a particular case (nāzila); can he give a fatwā according to what he finds in these works attributed to Mālik or one of his students, or choose Saḥnūn or his son [Muḥammad Ibn Saḥnūn, d. 256/869] or Ibn al-Mawwāz [d. 269/882] and their like?
Ibn Abī Zayd replied, “If the nāzila is found in one of these books, he can give a fatwā accordingly. This applies if he finds a similar nāzila addressed by Ibn al-Qāsim or someone comparable to him or if he does not, he finds it addressed by Saḥnūn or his son or Ibn ʿAbdūs or Ibn al-Mawwāz, or someone of their rank. If Mālik’s students express a difference of opinion over the question, and Saḥnūn and the others of his rank do not have an agreed upon preference, he may give a fatwā according to what one of them prefers. This is especially true, since you said that there is no one in his region and there is no one to guide him who is not inferior to him, or who follows a madhhab other than that of the people of Medina.”
He was also asked, “Must a muftī (jurisconsult) tell the person seeking his opinion that there is a difference of opinion among jurists?”
He replied, “Some people think that the questioner may choose which opinion to follow if the muftī informs him of the differences of opinion, and he may follow whom he likes. If a man entered a mosque and saw Abū Muṣʿab [d. 242/857] in his circle, and he found others like that, he may follow the opinion of whom he liked. That is so if they are alive, and the same is so of their authoritative statements (aqwālhum al-thābita) after their death. Abū Muḥammad [Ibn Abī Zayd]’s preference is that if he [the questioner] had the competence to make an informed choice he may, but if not, it should be made for him, because the choice of men [scholars to follow] is like the choice of the authoritative statement (qawl).”[8]
Ibn Abī Zayd’s fatwās suggest a perhaps common practice among muftīs beyond the centers of learning of consulting one or more of the ‘mother texts’ as the basis for their opinion. He describes a best practice approach in such circumstances, if there is no one more qualified to consult. The second fatwā expresses more clearly Ibn Abī Zayd’s promotion of tarjīḥ, the method of selecting among opinions based on comprehensive knowledge of the masāʾil and their transmissions, the agreements and differences among them, the reasons for the differences, and the contexts in which they applied.
Ibn Ḥārith al-Khushanī composed numerous works for the future Andalusī-Umayyad caliph al-Ḥakam II (r. 350–366/961–976) and served on the juridical council (shūrā) in Cordoba. He is perhaps best known in our own time as a biographer, author of Ṭabaqāt ʿulamā Ifrīqiyya (Classes of the Scholars of Ifrīqiyya), Quḍāt bi-Qurṭuba (The Judges of Córdoba), and Akhbār al-fuqahā wa’l-muḥaddithīn (Reports of the Jurists and the Hadith Transmitters)—the first a biographical dictionary of Ifrīqiyyan scholars, the second on the judges of Cordoba, and the third a biographical dictionary of Andalusī jurists and ḥadīth scholars. Our attention will turn to another book dedicated to al-Ḥakam II, his Uṣūl al-futyā fi al-fiqh al-Mālikī ʿalā madhḥab al-imām Mālik (The Foundations of Legal Opinion-Giving in Jurisprudence according to the School of Imam Mālik), which has been edited and published but not much studied.[9]
Originally from Qayrawān, Ibn Ḥārith left for al-Andalus in 312/924 at a young age and eventually established himself in Cordoba, where he completed his education and became a member of the shūrā and one of the future al-Ḥakam II’s circle of learned men.[10] A look at the biographies of his teachers in Cordoba who also served as jurisconsults gives us a sense of the range of expertise among the authoritative jurists of his generation. They included Muḥammad b. Yaḥyā b. ʿUmar b. Lubāba (d. 330/942), who specialized in masāʾil but had no knowledge of ḥadīth; Qāsim b. Aṣbagh (d. 340/951) and Muḥammad b. ʿAbd al-Mālik b. Ayman (d. 330/942) who were experts in both ḥadīth and masāʾil, as well as Ḥasan b. Saʿd (d. 332/944), who studied ḥadīth, inclined toward al-Shāfiʿī’s qawl (authoritative speech), and stopped attending the shūrā.[11]
Uṣūl al-futyā represents another approach to the multitude of Mālikī masāʾil and the challenges of their interpretation. Whereas al-Nawādir wa’l-ziyādāt collates masāʾil according to themes and, in its comprehensiveness, offers a foundation for analysis of principles and conditions, Uṣūl al-futyā centers on common principles as the basis for understanding the masāʾil and as the foundation for their use in making judgments and participating in debates.[12] The author states that he aimed for clarity and brevity and avoided obscure arguments and unusual questions.[13] He provides a list of chapters for easy consultation.[14] Many of his chapter titles echo those of other fiqh works. However, some of his chapters bring together opinions that are typically dispersed across works like the Mudawwana and the Mustakhraja, making them immediately accessible. For example, he has chapters on “The Father,” “Rules Regarding the Child,” “Rules Regarding the Legally Incompetent,” “Rules Regarding Women,” and “Rules Regarding the People of Protected Status (Ahl al-Dhimma).”[15]
The chapter on ablutions in Uṣūl al-futyā does not include any of the opinions regarding the leftover used water or backwash of the Christian, likely because of the complicated variations of opinions. The chapter begins: “The principle (aṣl) of Mālik b. Anas’s madhhab and the narrations of his students is that all water that is mixed with something other than itself is pure, whether that thing is pure or impure, unless the water changes in color, taste, or smell. Then the water is not considered pure or proper for ablutions.”[16] The ensuing statements establish that prayer performed after ablutions with water changed by something pure, like perfume, should be repeated either in the appropriate time or later; prayer should be repeated in the proper time if ablutions are performed with water whose impurity scholars disagree about; and prayer must be repeated if water all the scholars agree is impure is used.[17]
The discussion of the work of these two jurists and the sampling of their work suggest some of the ways in which fourth/tenth century jurists contributed to the development of the masāʾil-based Mālikī madhhab. Ibn Abī Zayd’s collation of masāʾil expanded on the model and content of the Mudawwana by including masāʾil from more of Mālik’s students, Saḥnūn’s contemporaries, and the next generation, contributing to a ranking of scholars in that cohort. The multi-volume work provided a comprehensive source base. Its organization in topical chapters provided a foundation for casuistic analysis of principles, conditions, and circumstances, and the development of expertise to formulate fatwās addressing specific cases, including unprecedented ones. Ibn Abī Zayd’s fatwās on the use of masāʾil collections suggest the authority of all the opinions contained therein, the validity of applying opinions from the “mother texts,” and the recommendation that choice among opinions is best made by experts (who, in turn, may disagree among themselves). He does not suggest that non-experts could make their own inferences from the recorded masāʾil.
Ibn Ḥārith’s Uṣūl al-futyā reads as a complement to Ibn Abī Zayd’s approach to the volume and variety of masāʾil collections. He records the core principles of the Mālikī madhhab, from which the branches addressing conditions and circumstances emerge.
Notes:
[1] The challenge is a recurring one. Mohammad Fadel describes the emergence of mukhtaṣars in the thirteenth century as an effort to organize and regulate the use of the masāʾil and “ensure the discretion of the lower ranking jurists was sufficiently regulated.” See “The Social Logic Taqlīd and the Rise of the Mukhtaṣar,” Islamic Law and Society 3 (1996): 208.
[2] Ibn Abī Zayd al-Qayrawānī, al-nawādir wa’l-ziyādāt ʿalā mā fī l-Mudawwana min ghayrihā min al-ummahāt, ed. ʿAbd al-Fattāḥ Muḥammad al-Ḥalw (Beirut: Dār al-Gharb al-Islāmī, 1999), 1:5, 9–15.
[3] See the previous essay in this series for quotations from al-Mudawwana and al-Mustakhraja on the same subject.
[4] This opinion appears in Ibn Rushd al-Jadd, al-Bayan wa’l-taḥṣīl, ed. Muḥammad Hajjī (Beirut: Dar al-Gharb al-Islami, 1984–87), 1: 172–73; to be discussed.
[5] Ibn Rushd al-Jadd, al-Bayan wa’l-taḥṣīl, 1:138
[6] Ibn Abī Zayd, al-nawādir wa’l-ziyādāt, 1:69–71.
[7] al-Burzulī, Fatāwā al-Burzulī: Jāmiʿ masāʾil al-aḥkām, ed Muḥammad al-Ḥabīb al-Hīla (Beirut: Dār al-Gharb al-Islāmī, 2002), 1:63–64; al-Wansharīsī, 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), 10:40–41. Note that the questions under discussion here were generalized at some point, and both questions and answers no longer retain the form of the original inquiries.
[8] al-Burzulī, Fatāwā al-Burzulī, 1:63–64
[9] Muḥammad Ibn Ḥārith al-Khushanī, Uṣūl al-futyā fi al-fiqh al-Mālikī ʿalā madhḥab al-imām Mālik, ed. Muḥammad al-Majdūb, Muḥammad Abū-l-Ajfān, and ʿUthmān b. Baṭikh, (n.p: al-Dār al-ʿArabiyya lil-Kitāb, 1985).
[10] Muḥammad Ibn Ḥāriṯ al-Jušanī (m. 361/971), Ajbār al-fuqahāʾ wa-l-muḥaddiṯīn (Historia de los alfaquíes y tradicionistas de al-Andalus), ed. María Luisa Ávila, Luis Molina (Consejo Superior de Investigaciones Científicas, 1992), xxxvii-xxxix.
[11] Ibn al-Faraḍī, Taʾrīkh ʿulamā al-Andalus, ed. Bashar ʿAwad Maʿrouf (Tunis: Dar al-Gharb al-Islami, 2008), 2:71, 1:467–69, 2:69–71; 1:165–66.
[12] The uṣūl here refer to foundational principles and opinions.
[13] Ibn Ḥārith, Uṣūl al-futyā, 44–45.
[14] Ibn Ḥārith, Uṣūl al-futyā, 46.
[15] Ibn Ḥārith, Uṣūl al-futyā, 397–401, 402–7, 414–16. 425–30,431–38.
[16] Ibn Ḥārith, Uṣūl al-futyā, 47.
[17] Ibn Ḥārith, Uṣūl al-futyā, 47–48.
Suggested Bluebook citation: 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/.
Suggested Chicago citation: 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/
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