al-Tawassut bayn Malik wa Ibn al-Qasim fi al-Masail allati ikhtalafa fiha min Masail al-Mudawwana
- Author died
- 378 AH
- Editions
- Dar al-Diya
al-Tawassut bayn Malik wa Ibn al-Qasim fi al-Masail allati ikhtalafa fiha min Masail al-Mudawwana (Mediation Between Malik and Ibn al-Qasim on the Issues Over Which They Differed from the Issues of al-Mudawwana) is a fourth-century AH legal treatise by the Andalusi Maliki jurist Abu 'Ubayd al-Qasim ibn Khalaf al-Jubayri (d. 378 AH / 988 CE; also reported 371 AH) , examining internal juristic differences within the Maliki school found in al-Mudawwana .
Subject and Structure
The work belongs to the genre of intra-school comparative jurisprudence (ikhtilaf), specifically focusing on substantive legal rulings (furu') where Ibn al-Qasim disagreed with his teacher Imam Malik ibn Anas in al-Mudawwana . Across the treatise, al-Jubayri analyzes a total of 44 legal issues, examining the evidentiary basis (ma'khadh) and legal rationale ('illa) underpinning the stance of each jurist before offering an independent assessment .
Methodology and Juristic Weighing
Al-Jubayri evaluates the merits of competing opinions without adhering strictly to a single side, though he predominantly favours the positions of Malik over those of Ibn al-Qasim :
- In 18 issues, he favoured Malik's position; in nine of these, he affirmed that both views maintained valid reasoning (wajh sa'igh fi al-nazar) while preferring Malik's, and in the other nine, he preferred Malik's view outright .
- In five issues, he explicitly maintained that both opinions were valid in juristic deduction without declaring a preference between them .
- In one issue, he judged Malik's stance to be closer to analogical deduction (aqyas) and Ibn al-Qasim's to be more legally cautious (ahwat), whereas in two other issues he reversed this classification .
- In one issue, he treated Ibn al-Qasim's stance as standard analogy (qiyas) and Malik's as grounded in recommendation (istihbab) .
- In one issue, he preferred the position of Ibn Hurmuz, which aligned with Ibn al-Qasim's view .
- In another issue, he favoured the position of Ibn Abi Uways over both scholars, while stating that Malik's opinion remained the more analogical .
- In the remaining 15 issues, he refrained from giving a definitive preference to either opinion .
Reception
The treatise was cited and praised by subsequent Maliki biographers. Ibn Mufarraj highlighted al-Jubayri's skill in composition, characterizing the work as "a fine book" (kitab hasan) . In al-Dibaj al-Mudhahhab, Ibn Farhun similarly described it as a "fine and beneficial book" (kitab hasan mufid) .
Manuscripts and Publication
The work has survived in a single manuscript preserved at the library of the Great Mosque in Meknes, Morocco (MS 218), comprising 40 folios within a collective volume (majmu') . Its colophon records that the transcription was completed at a madrasa in Ceuta (Sabta) during the middle third of Dhu al-Qa'da 706 AH .
The text was edited by Abu Sufyan Mustafa Bahu and published by Dar al-Diya' in Tanta, Egypt (1st edition, 1426 AH / 2005 CE) .
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