بسم الله الرحمن الرحيم
Our sheikh, the researcher, the astute scholar and muhaddith, Hayder Hasan Khan Al-Tunki رحمه الله said in his treatise that he compiled in regard to establishing passed-down practise (حجية العمل المتوارث) being evidence:
“What is known is that in the time of the Prophet ﷺ, similarly in the time of the Sahabah رضي الله عنه, the teachings of the Prophet ﷺ were not documented in book form; (nothing was documented in such a way) except for the book of Allah. They only used to practice upon that which the Prophet ﷺ taught from the Sunnah in the religion of Islam, whether it was regarding beliefs or rulings, and they would memorize his way in their chests.
When Iraq was conquered at the time of Omar رضي الله عنه, and people of that region entered Islam, Omar رضي الله عنه sent Abdullah Ibn Masud رضي الله عنه to the people of Iraq, so that he can teach them Islam and the Sunnah of the Prophet ﷺ , and Ibn Masud رضي الله عنه was one of the most knowledge from amongst the Sahabah in regards to the Sunnah and most similar to the Prophet ﷺ, in guidance, form, and demonstration.
So he taught them Islam and the Sunnah from that which he had memorized in his chest, and that which he used to practice, so his teachings and actions became widespread amongst the people of Iraq.
The people of Iraq in the Hajj seasons would go to Medina and Mecca, and similarly the people of Hijaz from amongst the Sahabah would go to Iraq, from amongst them was Omar رضي الله عنه who had sent Ibn Masud رضي الله عنه, so they, i.e. the people of Hijaz seen the people of Iraq, praying and fasting, just as Ibn Masud had taught them from the Sunnah of the Prophet ﷺ.
It was not transmitted by any of the Sahabah, nor Omar or anyone else, that they had an issue with the teachings of Ibn Masud, that he had possibly taught them something against the Sunnah of the Prophet ﷺ, whether it had to do with prayer or any other rulings. It is far fetched that the companions of the Prophet ﷺ would see someone acting contrary to the Sunnah and remain silent of such; this is something that is undeniable. The teachings of Ibn Masud imparted to the people of Iraq and the dissemination of these teachings in the time of the companions were not rebutted or rejected, so the consensus of the Sahabah in respect to these teachings is considered an ijmaa sukuti, just like the consensus of the collection of the Quran.
Then after Ibn Masud, in his place sat his two students Alqama and Aswad, who taught the people of Iraq just like he taught them . Neither of them were censored in respect to these teachings, nor practicing upon them.
This is how things were until the time of the great scholars of fiqh and fatwah in Iraq, they had great knowledge about the different narrations from the Prophet ﷺ, some of these narrations contradicted the teachings and practices of Ibn Masud, when something like this occurred, they would go to that practice which was inherited, and they made that the gauge for criticizing different narrations, and what is meant by this inherited practice (العمل المتوارث) is the practice of the pious salaf, meaning the majority of their scholars. The scholars witnessed that the narrator of a hadith would narrate a hadith but not act upon it, that hadith would be narrated from him as well as his acting against it. At that point, they interpreted the narration and followed the narrator in his actions. All of this is because it is very far fetched that the scholars of the Sahabah and the tabiyeen would narrate a hadith but then not act upon it, because acting contrary to a hadith removes uprightness (adalat), so it is necessary that this hadith was not acted upon either because it has some interpretation, was abrogated, or something of this sort.
They were from amongst the best of generations, that the following two Quranic verses came in respect to, “The forerunners from the Muhajirin and Ansar and those who follow them,” and “Whoever goes against the Messenger after guidance has been made clear to him and follows other than the path of the believers,” so we are commanded to follow and obey them in respect to the religion and following the Sunnah.
This is why the people of Iraq laid down the principle that if the hadith is established from a narrator as well as his action against the narration, then the hadith is not acted upon, rather his action is, similar is Imam Malik, he acts according to the practice of the people of Medina when differences occur with the narration.
The salaf, the first generation from the Sahabah and Tabiyeen, many a time they would narrate ahadith from the Prophet ﷺ then not act upon it, like the hadith of Ibn Abbas رضي الله عنهما where the Prophet ﷺ combined Dhuhr and Asr in Madina and Maghreb and Isha without any fear or rain.
Similar is the hadith of the Prophet ﷺ of the prayer in his sickness, he commanded Abu Bakr رضي الله عنه to lead the people in prayer. He led them in prayer and the Prophet ﷺ came when he was leading the people, so he prayed by the side of Abu Bakr رضي الله عنه and the people were following Abu Bakr رضي الله عنه while Abu Bakr رضي الله عنه was following the Prophet ﷺ, the imamah of the prayer was split between two people and two tahrimahs, this is what the hadith indicates towards, but none of the narrators acted upon this, not from the Sahabas or tabiyeen.
Similar to this is the hadith that the Prophet ﷺ would place his right hand on his left, this includes the qawma position, but placing the hands on top of one another in this position has not been related by any of the salaf, so practice has been established against the hadith in this state.
Similarly there is a hadith, “That which you catch, then pray and that which you missed, make up for,” this comprises the one who misses ruku with the imam but catches the two sajdahs and tashahud, he will still redo what he caught with the imam i.e. the two sajdahs and tashahud according to consensus and that goes against the generality of the hadith, “That which you catch, then pray.”
If you look at the ahadith, many a times you will find that ahadith are narrated from the salaf, as well as them acting contrary to their narrations. Since the salaf were guiders and those who were guided, we are commanded to follow them in religion. In their acting contrary to their narration is a clear sign that in the narration there is a subtle defect (ellah) and due to this they did not act according to the narration, due to this the early scholars of Iraq made the gauge of criticizing different narrations the practice of the pious predecessors from the scholars of the Sahabah and Tabiyeen who were in the best of generations, and that is because the coming nation were commanded to follow them in Deen and Shariah due to the verses we mentioned and due to the statement of the Prophet ﷺ, “My Sahabah are the trustees of my nation,” which Muslim narrates and due to the hadith “That which I am upon and my companions,” so the actions of the giants among them are a legal proof from amongst the legal (shari) evidences.
Don’t you see the practice of the ummah in the reciting and completing of the Quran in taraweeh which was not narrated from the Prophet ﷺ nor the Sahabah in the time of the Prophet ﷺ, so then that that could have been an approval (taqreer) from him. It was only established from the practice of the salaf. Similarly, the prayer of taraweeh in congregation, the Prophetﷺ led it then left it and he did not let them pray in congregation, it was as if it had been abrogated. On top of that it is not known after the Prophet ﷺ leaving it out, the Sahabah praying it in congregation in the time of the Prophet ﷺ, so that it could have been an approval from him, rather the taraweeh prayers in congregation are nothing but the practice of the salaf. So their practice is a legal evidence, this is something the jurists have clearly mentioned.
If you understand this, it should be clear to you that the fiqh of the people of Iraq branched out from the teachings of Ibn Masud رضي الله عنه which were the teachings the early Iraqis followed, the fatawa passed by Ali and Ibn Abbas رضي الله عنهم as well as their practice coincided with these teachings in many rulings. The fiqh of Imam Malik is quite close to the fiqh of the people of Iraq. So, this is the fiqh of Iraq and Hijaz that the giant scholars followed, from the ulema who were from the beginning of the second century, the second hundred years after the Hijrah of the Prophet ﷺ.
As for the fiqh of the later scholars, meaning the fiqh of the scholars who came after the early scholars, who came at the end of the second hundred years, and the beginning of the third century, after much time had passed and the Tabiyeen as well as those who from amongst the ulama met them passed away. When the practice of this early generation could no longer be witnessed, these later scholars grew up not having witnessed this practical application of the early Muslims. All that reached them were narrations with many differences, so they resorted to criticizing narrations based on the narrators in the chains. That is why they develop discussions regarding the narrators from the angle of jarh and tadeel, and tawtheeq and tadeef. This science then became known as Asmaaul Rijaal. So they acted according to narrations based on the adalat of its narrators using the yard stick of Asmaaul Rijaal. This was the gauge of the later scholars to criticize narrations.
It is not hidden for the one who reads the books of Asmaaul Rijaal that from the narrators, are those that are up right according to one scholar and not up right according to another. It is a principle in jarh and tadeel to take the opinion from such a person who was a contemporary of the narrator, not someone who came after, because there is no way to come to know about the details of someone who you do not personally live and interact with. On top of that, there is no doubt that from amongst the contemporaries of a narrator are those who sees the uprightness of the narrator based on the apparent, but he’s unaware of that which actually goes against his uprightness, and many a time, someone else who was a contemporary of that same narrator gained disparaging information about him. So criticism comes apparent from another contemporary. So even the opinions of contemporaries in jarh and tadeel differ, that is why they placed the principle, jarh (disparaging remarks) are taken before tadeel (praises).
What is intended here is that this gauge is the cause of the differing of the two fiqhs, the fiqh of the early scholars and the fiqh of the later scholars, because the later scholars came to know of narrations which they claimed its narrators are trustworthy and they rejected other narrations that went against these narrations, but these narrations were actually authentic in respect to the narrators according to the early scholars. On top of that, the narrations that the early jurists practiced upon, if we were to accept that the narrators are weak in those narrations, however the practice of the early generations would have authenticated (added strength) to these narrations, and this is a principle from amongst the principles, that a weak narration is made strong by practice.
What is known is that Islamic beliefs are documented in books in two ways: the way of the salaf and the way of the khalaf, and each way has its own virtue, some people prefer the first for some reasons while some people prefer the second for some reasons. So after that, whoever wills, let him look into this chapter and think about the two approaches and choose one based on where his reasoning leads him. Similarly, is the difference between the two fiqhs: the fiqh of the salaf and the fiqh of the khalaf, the yardstick of the first is the practice of the first generation, and the second is based on speaking about narrators with jarh and tadeel.
Whoever casts his glance at the books of Asmaaur Rijaal, he will find a number of astonishing things, that from amongst the narrators are those who are pillars in the religion and disparaging statements about them are plenty. You will find things about them in the books of rijal that describe them as if they destroyed the religion and as if they are like Abdullah Ibn Saba in destroying Islam. Similarly, there are those narrators which are enemies to the religion, who were extreme in the views of the Mutazila and those burnt with Shiaism and filthy innovation, and yet scholars have authenticated their narrations.
Whoever researches in this chapter and realize the difference between the two yardsticks: firstly, the practice of the salaf and secondly the narrations of the narrators, so let a person take whatever path he will and learn any of the two fiqhs to which his reasoning leads him.”
[الامام ابن ماجه وكتابه السنن للعلامة المحدث الشيخ محمد عبد الرشيد النعماني ص 86-90]
