10-30-2012, 05:23 PM
In this post I will attempt to cover briefly the topics of Ijma and Qiyas.
This is the consensus of Juristic opinions of learned Ulama and the agreement reached on the decisions taken by learned muftis or the Jurists on various Islamic matters.
An example of ijma is the punishment for the one who drinks alcohol. This was not specified by Allah (swt) but the sahabah at the time discussed the issue and through the use of Ijama. Sayyidna Ali Bin Abu Talib is reported to have said:
“He who drinks, gets drunk; he who gets drunk, raves; he who raves accuses people falsely; and he he accuses people falsely should be given eighty strokes of cane according to the injunction of the Holy Quran.
This is known as analogical deduction on the basis of Quran, Sunnah and ijama. There are conditions for Qiyas laid down by Jurists:
1) Qiyas can only be applied when there is no solution to the matter in the Qur’an or Hadith
2) Qiyas must not go against the principles of Islam
3) Qiyas must not go against the content s of the Quran nor should it go against the teachings of the Prophet
There are two types of Qiyas: Qiyas al-Jaliyy (transparent) and Qiyas al-Khaffiy (hidden). An example of transparent Qiyas would be that because alcohol is forbidden on the grounds of being an intoxicant, it would follow that alcohol is forbidden in Islam full stop. This would cover buying, selling such goods.
An example of hidden Qiyas is Zakat. We’re allowed to give out goats as a form of Zakat, but to someone who is considerably poor, the actual money itself would be more beneficial to this person than a goat.
As all of this info is taken directly from a text book (link in my sig; reference at the end of this post) It will take some time to condense all the information on Ijtihad, so I will post it at a later date. Probably tomorrow. For now, please take some time to read this post and feel free to ask any questions you might have.
Reference: Sharia: the islamic law
Abdur rahman I Doi.
12-16-2012, 11:40 PM
Mu'adh ibn Jabal states that when the Prophet (PBUH) sent him to Yemen, he asked:
"what will you do if a matter is referred to you for judgement?" Mu'adh said: "I will judge according to the Book of Allah." The Prophet asked: "what if you find no solution in the Book of Allah?" Mu'adh said: "Then I will judge by the Sunnah of the Prophet." The Prophet asked: "And what if you do not find it in the Sunnah of the Prophet?" Mu'adh said: "Then I will make Ijtihad to formulate my own judgement." The Prophet patted Mu'adh's chest and said "Praise be to Allah who has guided the messenger of His Prophet to that which pleases Him and His Prophet."[Abu Daud]
Amir ibn Al-As reported: I heard the Messenger of Allah, peace be upon him, say, “If a judge makes a ruling, striving to apply his reasoning (ijtihad) and he is correct, then he will have two rewards; and if a judge makes a ruling, striving to apply his reasoning and he is mistaken, then he will have one reward.”
[Sahih Muslim, Book 18, Number 4261]
Ijtihad, or Personal Reasoning
Ijtihad is the most important source of Islamic law next to the Qur'an and the Sunnah. The main difference between ijtihad and the revealed sources of the Shari'ah lies in the fact that ijtihad is a continuous process of development whereas divine revelation and prophetic legislation discontinued upon the demise of the Prophet. In this sense, ijtihad continues to be the main instrument of interpreting the divine message and relating it to the changing conditions of the Muslim community in its aspirations to attain justice, salvation and truth.
Being a derivation from the root word jahada, ijtihad literally means striving, or self-exertion in any activity which entails a measure of hardship. It would thus be in order to use jahada in respect of one who carries a heavy load, but not so if he carries only a trivial weight. Juridically, however, ijtihad mainly consists not of physical, but of intellectual exertion on the part of the jurist. Ijtihad is defined as the total expenditure of effort made by a jurist in order to infer, with a degree of probability, the rules of Shari'ah from their detailed evidence in the sources.[2. Amidi, Ihkam, IV, 162; Shawkani, Irshad, p. 250; Khudari, Usul, p. 367.]
Some ulema have defined ijtihad as the application by a jurist of all his faculties either in inferring the rules of Shari'ah from their sources, or in implementing such rules and applying them to particular issues.[3. Abu Zahrah, Usul, p.301.] Ijtihad essentially consists of an inference (istinbat) that amounts to a probability (zann), thereby excluding the extraction of a ruling from a clear text. It also excludes the discovery of a hukm by asking a learned person or by consulting the relevant literature without the exercise of one's own opinion and judgment. Thus a person who knows the rules of Shari'ah in detail but is unable to exercise his judgment in the inference of the ahkam direct from their sources is not a mujtahid. Ijtihad, in other words, consists of the formulation of an opinion in regard to a hukm shar'i.
The subject of ijtihad must be a question of Shari'ah; more specifically, ijtihad is concerned with the practical rules of Shari'ah which usually regulate the conduct of those to whom they apply (i.e. the mukallaf). This would preclude from the scope of ijtihad purely intellectual (`aqli) and customary (urfi) issues, or matters that are perceptible to the senses (hissi) and do not involve the inference of a hukm shar'i from the evidence present in the sources. Thus ijtihad may not be exercised in regard to such issues as the createdness of the universe, the existence of a Creator, the sending of prophets, and so forth, because there is only one correct view in regard to these matters, and any one who differs from it is wrong. Similarly, one may not exercise ijtihad on matters such as the obligatory status of the pillars of the faith, or the prohibition of murder, theft, and adultery. For these are evident truths of the Shari'ah which are determined in the explicit statements of the text.[7. Shawkani, Irshad, p. 252; Zuhayr, Usul, IV, 225; Aghnides, Muhammedan Theories, p. 91; Badran, Usul, p. 471.]
The detailed evidences found in the Qur'an and the Sunnah are divided into four types, as follows.
1) Evidence which is decisive both in respect of authenticity and meaning.
2) Evidence which is authentic but speculative in meaning.
3) That which is of doubtful authenticity, but definite in meaning.
4) Evidence which is speculative in respect both of authenticity and meaning.
Ijtihad does not apply to the first of the foregoing categories, such as the clear nusus concerning the prescribed penalties (hudud). But ijtihad can validly operate in regard to any of the remaining three types of evidence, as the following illustrations will show:
1) An example of ijtihad concerning evidence which is definite of proof but speculative of meaning is the Qur'anic text in sura al-Baqarah (2:228): 'The divorced women must observe three courses (quru') upon themselves.' There is no doubt concerning the authenticity of this text, as the Qur'an is authentic throughout. However its meaning, in particular the precise meaning of the word quru', is open to speculation. Quru' is a homonym meaning both `menstruations' and `the clean periods between menstruations'. Whereas Imam Abu Hanifah and Ibn Hanbal have adopted the former, Imam Shafi'i and Malik have adopted the latter meaning, and their respective ijtihad leads them to correspondingly different results.[8. Kassab, Adwa', p. 29; Badran, Usul, p. 473.]
2) Ijtihad in regard to the second variety of evidence relates mainly to Hadith material, which may have a definitive meaning but whose authenticity is open to doubt. To give an example, the Hadith which provides in regard to zakah on camels that `a goat is to be levied on every five camels.'[9. Abu Dawud, Sunan (Hasan's trans.), II, 407, Hadith no. 1562.] has a clear meaning, which is why the jurists are in agreement that there is no zakah on less than five camels. But since this is a solitary Hadith, its authenticity remains speculative. Ijtihad concerning this Hadith may take the form of an investigation into the authenticity of its transmission and the reliability of its narrators, matters on which the jurists are not unanimous due to the different criteria that they apply. This would in turn lead them to different conclusions. Should the differences of ijtihad and the rulings so arrived at be conflicting to the point that no reliance can be placed on any, they are all to be abandoned and no obligation may be established on their basis.[10. Kassab, Adwa', p. 30; Badran, Usul, p. 474.]
3) To give an example of ijtihad concerning evidence that is speculative in both authenticity and meaning, we may refer to the Hadith which provides: 'There is no salah [la salata] without the recitation of sura al-Fatihah.' [11. Abu Dawud, Sunan (Hasan's trans.), I, 209, Hadith no. 819.] Being a solitary Hadith, its authenticity is not proven with certainty. Similarly it is open to different interpretations in the sense that it could mean either that salah without the Fatihah is invalid, or that it is merely incomplete. The Hanafis have held the latter, whereas the Shafi'is have adopted the former meaning of the Hadith.
And finally with regard to such matters on which no evidence can be found in the nusus or ijma`, ijtihad may take the form of analogical deduction, juristic preference (istihsan), or the consideration of public interest (maslahah), and so on.
Source: Principles of Islamic Jurisprudence ~ M.H.Kamali
12-18-2012, 12:52 AM
Conditions (Shurut) of IjtihadReply
The mujtahid must be a Muslim and a competent person of sound mind who has attained a level of intellectual competence which enables him to form an independent judgment. In his capacity as a successor to the Prophet, the mujtahid performs a religious duty, and his verdict is a proof (hujjah) to those who follow him; he must therefore be a Muslim, and be knowledgeable in the various disciplines of religious learning. A person who fails to meet one or more of the requirements of ijtihad is disqualified and may not exercise ijtihad. The requirements which are discussed below contemplate ijtihad in its unrestricted form, often referred to as ijtihad fi'l-shar`, as opposed to the varieties of ijtihad that are confined to a particular school, or to particular issues within the confines of a given madhhab.
The earliest complete account of the qualifications of a mujtahid is given in Abu' Husayn al-Basri's (d.436/1044) al-Mu'tamad fi Usul al-Fiqh. The broad outline of al-Basri's exposition was later accepted, with minor changes, by al-Shirazi (d. 467/1083), al-Ghazali (d. 505/111 ) and al-Amidi (d. 632/1234). This does not mean that the requirements of ijtihad received no attention from the ulema who lived before al-Basri. But it was from then onwards that they were consistently adopted by the ulema of usul and became a standard feature of ijtihad.[30. Cf. Hallaq, The Gate, pp. 14-17.]
These requirements are as follows:
(a) Knowledge of Arabic to the extent that enables the scholar to enjoy a correct understanding of the Qur'an and the Sunnah. A complete command and erudition in Arabic is not a requirement, but the mujtahid must know the nuances of the language and be able to comprehend the sources accurately and deduce the ahkam from them with a high level of competence.[31. Ghazali, Mustasfa, II, 102; Abu Zahrah, Usul, p.302.] Al- Shatibi, however, lays greater emphasis on the knowledge of Arabic: a person who possesses only an average knowledge of Arabic cannot aim at the highest level of attainment in ijtihad. The language of the Qur'an and the Sunnah is the key to their comprehension and the ijtihad of anyone who is deficient in this respect is unacceptable. The same author adds: Since the opinion of the mujtahid is a proof (hujjah) for a layman, this degree of authority necessitates direct access to the sources and full competence in Arabic.[32. Shatibi, Muwafaqat, IV, 60.]
The mujtahid must also be knowledgeable in the Qur'an and the Sunnah, the Makki and the Madinese contents of the Qur'an, the occasions of its revelation (asbab al-nuzul) and the incidences of abrogation therein. More specifically, he must have a full grasp of the legal contents, or the ayat al-ahkam, but not necessarily of the narratives and parables of the Qur'an and its passages relating to the hereafter.[33. Ghazali, Mustasfa, II, 101.] According to some ulema, including al-Ghazali, Ibn al-Arabi, and Abu Bakr al-Raza, the legal ayat of the Qur'an which the mujtahid must know amount to about five hundred. Al-Shawkani, however, observes that a specification of this kind cannot be definitive. For a mujtahid may infer a legal rule from the narratives and parables that are found in the Qur'an. The knowledge of ayat al-ahkam includes knowledge of the related commentaries (tafasir) with special reference to the Sunnah and the views of the Companions. Al-Qurtubi's Tafsir al-Qurtubi, and the Ahkam al-Qur'an of Abu Bakr, 'Ali al-Jesses, are particularly recommended. [34. Shawkani, Irshad, pp. 250-51; Abu Zahrah, Usul, p.304; Zuhayr, Usul, IV, 226.]
Next, the mujtahid must possess an adequate knowledge of the Sunnah, especially that part of it which relates to the subject of his ijtihad. This is the view of those who admit the divisibility (tajzi'ah) of ijtihad (for which see below), but if ijtihad is deemed to be indivisible, then the mujtahid must be knowledgeable of the Sunnah as a whole, especially with reference to the ahkam texts, often referred to as ahadith al-ahkam. He must know the incidences of abrogation in the Sunnah, the general and the specific, ('amm and khass), the absolute and the qualified (mutlaq and muqayyad), and the reliability or otherwise of the narrators of Hadith. It is not necessary to commit to memory the ahadith al-ahkam or the names of their narrators, but he must know where to find the ahadith when he needs to refer to them, and be able to distinguish the reliable from the weak and the authentic from the spurious. [35. Shawkani, Irshad, p.251 ff; Abu Zahrah, Usul, p. 304.] Imam Ghazali points out that an adequate familiarity with the ahadith al-ahkam such as those found in Sunan Abi Dawud, Sunan al-Bayhaqi, or the Musnad of Ibn Hanbal would suffice. According to another view, which is attributed to Ahmad b. Hanbal, the ahadith al-ahkam are likely to number in the region of 1200. [36. Ghazali, Mustasfa, II, 101; Shawkani, Irshad, p. 251.]
The mujtahid must also know the substance of the furu`works and the points on which there is an ijma'. He should be able to verify the consensus of the Companions, the Successors, and the leading Imams and mujtahidun of the past so that he is guarded against the possibility of issuing an opinion contrary to such an ijma`. It would be rare, al-Shawkani observes, for anyone who has attained the rank of a mujtahid not to be aware of the issues on which there is a conclusive ijma`. By implication, the mujtahid must also be aware of the opposing views, as it is said, 'the most learned of people is also one
who is most knowledgeable of the differences among people'.[37. Shawkani, Irshad, p. 251; Ghazali, Mustasfa, II, 101; Abu
Zahrah, Usul, p. 305.]
In their expositions of the qualifications of a mujtahid, the ulema of usul place a special emphasis on the knowledge of qiyas. The Qur'an and the Sunnah, on the whole, do not completely specify the law as it might be stated in a juristic manual, but contact general rulings and indications as in the causes of such rulings. The mujtahid is thus enabled to have recourse to analogical deduction in order to discover the ruling for an unprecedented case. An adequate knowledge of the rules and procedures of qiyas is thus essential for the mujtahid. Imam Shafi`i has gone so far as to equate ijtihad with qiyas. Analogy, in other words, is the main bastion of ijtihad, even if the two are not identical. Al-Ghazali has observed that notwithstanding the claim by some ulema that qiyas and ijtihad are identical and coextensive, ijtihad is wider than qiyas as it comprises methods of reasoning other than analogy.[38. Ghazali, Mustasfa, II, 54; Shawkani, Irshad, p. 252; Abu Zahrah, Usul, p. 306.]
Furthermore, the mujtahid should know the objectives (maqasid) of the Shari'ah, which consist of the masalih (considerations of public interest). The most important masalih are those which the Lawgiver has Himself identified and which must be given priority over others. Thus the protection of the `Five Principles', namely of his, religion, intellect, lineage and property, are the recognised objectives of the Lawgiver. These are the essentials (daruriyyat) of the masalih and as such they are distinguished from the complementary (hajiyyat) and the embellishments (tahsiniyyat). The mujtahid must also know the general maxims of fiqh such as the removal of hardship (raf`al-haraj), that certainty must prevail over doubt, and other such principles which are designed to prevent rigidity in the ahkam. He must be able to distinguish the genuine masalih from those which might be inspired by whimsical desires, and be able to achieve a correct balance between values.[39. Shawkani, Irshad, p. 252; Abu Zahrah, Usul, p.307; Badran, Usul, p. 208.]
Al-Shatibi summarises all the foregoing requirements of ijtihad under two main headings, one of which is the adequate grasp of the objectives of the Shari'ah, while the other is the knowledge of the sources and the methods of deduction. The first of these is fundamental, and the second serves as an instrument of achieving the first.[40. Shatibi, Muwafaqat, IV, 56; Abu Zahrah, Usul, p. 307.]
It is further suggested in this connection that the mujtahid must be capable of distinguishing strength and weakness in reasoning and evidence. This requirement has prompted some ulema to say that the mujtahid should have a knowledge of logic (mantiq). But this is not strictly a requirement. For logic as a discipline had not even developed during the time of the Companions, but this did not detract from their ability to practice ijtihad.[41. Abu Zahrah, Usul, pp. 308-309; Ghazali, (Mustasfa, II, 103), considers a knowledge of Arabic, Hadith and usul al-fiqh to be essential to ijtihad. However the requirement concerning the knowledge of Usul would seem to be repetitive in view of the separate conditions that the mujtahid must fulfill, such as the knowledge of qiyas and other such requirements, which fall under the subject of Usul.]
And finally, the mujtahid must be an upright (`adil) person who refrains from committing sins and whose judgement the people can trust. His sincerity must be beyond question and untainted with selfseeking interests. For ijtihad is a sacred trust, and anyone who is tainted with heresy and selfindulgence is unworthy of it.[42. Ghazali, Mustasfa, II, 101; Shawkani, Irshad, p. 252.] These are the conditions of independent ijtihad, but a mujtahid on particular issues need only know all the relevant information concerning those issues and may, at least according to those who admit the `divisibility' of ijtihad, practice ijtihad in respect of them. His lack of knowledge in matters unrelated to the issues concerned does not prejudice his competence for ijtihad.[43. Ghazali, Mustafa, II, 102-103; Kassab, Adwa', p.38.]
Some observers have suggested that the practice of ijtihad was abandoned partly because the qualifications required for its practice were made 'so immaculate and rigorous and were set so high that they were humanly impossible of fulfilment'.[44. Cf. Fazlur Rahman, Islam, p. 78.] This is, however, an implausible supposition which has been advanced mainly by the proponents of taqlid with a view to discouraging the practice of ijtihad. As for the actual conditions, Abdur Rahim (with many others) has aptly observed that `the qualifications required of a mujtahid would seem to be extremely moderate, and there can be no warrant for supposing that men of the present day are unfitted to acquire such qualifications'. [45. Abdur Rahim, Jurisprudence, p. 174.] There is little evidence to prove that fulfilling the necessary conditions of ijtihad was beyond the reach of the ulema of later periods. on the contrary, as one observer has pointed out, `the total knowledge required on the part of the jurist enabled many to undertake ijtihad in one area of the law or another'. [46. Hallaq, The Gate, p. 14.] Their task was further facilitated by the legal theory, in particular the Hadith which absolved the mujtahid who committed an error from the charge of sin and even entitled him to a spiritual reward. Furthermore, the recognition in the legal theory of the divisibility of ijtihad, as we shall presently discuss, enabled the specialist in particular areas of the Shari`ah to practice ijtihad even if he was not equally knowledgeable in all of its other disciplines.
Source: Principles of Islamic Jurisprudence ~ M.H.Kamali
12-21-2012, 04:39 AM
Ijma' or Consensus of OpinionReply
It must be noted at the outset that unlike the Qur'an and Sunnah, ijma does not directly partake in divine revelation. As a doctrine and proof of Shari'ah, ijma' is basically a rational proof. The theory of ijma' is also clear on the point that it is a binding proof. But it seems that the very nature of this high status that is accorded to ijma` has demanded that only an absolute and universal consensus would qualify although absolute consensus on the rational content of ijma' has often been difficult to obtain. It is only natural and reasonable to accept ijma` as a reality and a valid concept in a relative sense, but factual evidence falls short of establishing the universality of ijma`.
The classical definition and the essential requirements of ijma`, as laid down by the ulema of usul, are categorical on the point that nothing less than a universal consensus of the scholars of the Muslim community as a whole can be regarded as conclusive ijma'. There is thus no room whatsoever for disagreement, or ikhtilaf, within the concept of ijma'. The theory of ijma' is equally unreceptive to the idea of relativity, or a preponderance of agreement within its ranks.
The absolute terms of the classical definition of ijma` have hardly been fulfilled by conclusive factual evidence that would eliminate all levels of ikhtilaf. Ijma' has often been claimed for rulings on which only a majority consensus had existed within or beyond a particular school. The proof and authenticity of ijma ` has, on the other hand, not received the kind of attention that has been given to the authentication of Hadith through a reliable isnad. The only form of ijma' which has been generally upheld is that of the Companions of the Prophet, which is partly due to their special status and not always due to their participation and consensus. With these introductory remarks, then, we may begin to examine the meaning and definition of ijma', and then proceed to discuss some of the issues we have raised.
Ijma` is the verbal noun of the Arabic word ajma'a, which has two meanings: to determine, and to agree upon something. To give an example of the former, the expression ajma `a fulan `ala kadha, means `so and-so decided upon such-and-such'. This usage of ajma`a is found both in the Qur'an and in theHadith.[1. In the Qur'an the phrase fajma'u amrakum which occurs in sura Yunus (10:71) means 'determine your plan'. Similarly fajma'u kaydakum in suraTaha (20:64), where the Prophet Noah addresses his estranged followers,means' determine your trick'.
The Hadith la siyama liman lam yajma'al-siyama min allaylmeans that fasting is not valid unless it is determined (or intended) in advance; i.e. from the night before. For details see Amidi, Ihkam, I, 195; Shawkani,Irshad, p.70.] The other meaning of ajma'a is `unanimous agreement'. Hence the phrase ajma'a al-qawm alakadha means `the people reached a unanimous agreement on such-and-such'. The second meaning of ijma` often subsumes the first, in that whenever there is a unanimous agreement on something, there isalso a decision on that matter.
Ijma` is defined as the unanimous agreement of the mujtahidun, of the Muslim community of any period following the demise of the Prophet Muhammad on any matter.[2. Amidi, Ihkam, I, 196, Shawkani, Irshad, p.71.Abu Zahrah and `Abd al-Wahhab Khallaf's definition of ijma` differs with that of Amidi and Shawkani on one point, namely the subject matter of ijma `, which is confined to shar'i matters only (see Abu Zahrah, Usul, p.156 and Khallaf, `Ilm, p. 45).] In this definition, the reference to the mujtahidun precludes the agreement of laymen from the purview of ijma`. Similarly, by reference to the mujtahidun of any period, is meant a period in which there exist a number of mujtahidun at the time an incident occurs. Hence it would be of no account if a mujtahid or a number of mujtahidun become available only after the occurrence of an incident The reference in the definition to any matter implies that ijma`applies to all juridical (shar'i), intellectual (aqli), customary (urfi,) andlinguistic (lughawi) matters.[3. Shawkani, Irshad, p.71.] Furthermore, shar'i, in this context is used in contradistinction to hissi, thatis, matters which are perceptible to the senses and fall beyond the scope of ijma`.
Some ulema have confined ijma' to religious, and others to shar'i matters, but the majority of ulema do not restrict ijma`to either. Although the majority of jurists consider dogmatics (itiqadiyat) to fall within the ambit of ijma`, some have expressed the view that ijma` may not be invoked in support of such subjects as the existence of God or the truth of the prophet hood of Muhammad. The reason is that such beliefs precede ijma` itself. Ijma` derives its validity from the nusus on the infallibility (`ismah) of the ummah. The senusus, in turn, take for granted the existence of God and the Prophethood of Muhammad. Now if one attempts to cite ijma` in support of these dogmas, this would amount to circumlocution.
To illustrate the point further, it may be said that the Qur'an cannot be proved by the Sunnah, because the Qur'an precedes the Sunnah.[4. According to one view, attributed to the Qadi `Abd al-Jabbar, matters pertaining to warfare, agriculture, commerce, politics and administration are described as worldly affairs, and ijma` is no authority regarding them.
One reason given in support of this view is that the Prophet himself precluded these matters from the scope of the Sunnah and the same rule is to be applied to ijma`. Amidi, however, confirms the majority view when he adds (in hisIhkam, I, 284) that these restrictions do not apply to ijma'.] Matters of a practical type witch do not partake in the nature of tashri` (legislation) do not constitute the proper subject of ijma`. For example, the agreement of the Companions to send out troops to Syria or to Persia, or their agreement on setting up certain government departments, etc., did not constitute ijma`. For these were practical decisions which were valid in connection with particular circumstances and did not bind the succeeding generations of Muslims. Ijma' on a shar`i ruling, on the other hand, has a quality of permanence and its validity is not confined by a time limit.[5. Abu Zahrah, Usul, p. 165.]
Although the theory refuses to impose any restriction on the subject-matter of ijma`, in actual terms the application of ijma` is bound to be subject to some reservations. For example, ijma' must be of a somewhat limited application in regard to rational and linguistic matters. To say that lying is evil, or that `hand' also means `power', need not be supported by ijma'. In actual terms, ijma' has always been selective in determining its own subject-matter. It was perhaps in view of the dynamic nature of ijma`and its infallibility that the ulema were persuaded not to impose any advance reservations on its scope.It is clear from its definition that ijma' can only occur after the demise of the Prophet. For during his lifetime, the Prophet alone was the highest authority on Shari'ah, hence the agreement or disagreement of others did not affect the overriding authority of the Prophet.
In all probability, ijma` occurred for thefirst time among the Companions in the city of Madinah. Following the demise of the Prophet, the Companions used to consult each other over the problems they encountered, and their collective agreement was accepted by the community. After the Companions, this leadership role passed on to the next generation, the Successors (tabi'un) and then to the second generation of Successors. When the selatter differed on a point, they naturally referred to the views and practices of the Companions and the Successors. In this way, a fertile ground was created for the development of the theory of ijma'.[6. Cf.Aghnides, Muhammedan Theories, pp. 37-38.] The essence of ijma` lies in the natural growth of ideas. It begins with the personal ijtihad of individual jurists and culminates in the universal acceptance of a particular opinion over a period of time. Differences of opinion are tolerated until a consensus emerges, and in the process there is no room for compulsion or the imposition of ideas upon the community.
Ijma' plays a crucial role in the development of Shari'ah. The existing body of fiqh is the product of along process of ijtihad and ijma`. Since ijma` reflects the natural evolution and acceptance of ideas in the life of the community, the basic notion of ijma' can never be expected to discontinue. The idea that ijma` came to a halt after the first three generations following the advent of Islam seems to be a by product of the phenomenon known as the closure of the gate of ijtihad. Since ijma' originates in ijtihad,with the closure of the gate of ijtihad, it was expected that ijma' also came to a close. This is, however,no more than a superficial equation, as in all probability ijma' continued to play a role in consolidating and unifying the law after the supposed termination of ijtihad.[7. Cf Ahmad Hasan, Early Development, p.160ff.]
Source: Principles of Islamic Jurisprudence ~ M.H.Kamali
12-21-2012, 04:40 AM
Essential Requirements (Arkan) of Ijma`
Whenever an issue arises and attracts the attention of the mujtahidun of the Muslim community at the time of its incidence, and they reach a unanimous agreement on its ruling, it is implied that the ruling so agreed upon is the correct and authoritative ruling of the Shari'ah, provided that the following conditions are fulfilled:
That there are a number of mujtahidun available at the time when the issue is encountered. For consensus can never exist unless there is a plurality of concurrent opinion. Should there be a situation where a plurality of mujtahidun could not be obtained, or when there is only a single mujtahid in the community, no ijma' could be expected to materialise.[11. For details on the essential requirements of ijma' see Khallaf, `Ilm, p.45ff; Shawkani, Irshad, p.71ff.]
According to the majority of ulema, unanimity is a prerequisite of ijma`. All the mujtahidun,regardless of their locality, race, colour and school or following, must reach a consensus on a juridical opinion at the time an issue arises. The presence of a dissenting view, even on the part of a small minority, precludes the possibility of ijma`. If, for example, the mujtahidun of Meccaand Madinah, or those of Iraq, or the mujtahidun of the family of the Prophet, or the Sunni ulema without the agreement of their Shi'i counterparts agree upon a ruling, no ijma' will materialise.
The majority of ulema maintain that lay opinion is not taken into account: in every field of learning, only the opinion of the learned is relevant to ijma`. Al-Amidi, however, prefers the minority view, attributed to Abu Bakr al-Baqillani and others, to the effect that ijma' includes the agreement of both the laymen and the mujtahidun, the reason being that 'ismah, which is thedoctrinal basis of ijma `, is a grace of God bestowed on the whole of the community. It would therefore be improper to turn the property of the entire community into a privilege of the mujtahidun. The majority view is, however, based on the analysis that the mujtahidun, in their capacity as the constituents of ijma`, merely represent the community, and therefore no change is proposed in the original locus of 'ismah.[12. Amidi, Ihkam, I, 226. Bazdawi,however, distinguishes matters which do not require specialised knowledge from other matters, and suggests that no discrimination should be made between the layman and the jurists regardingthe essentials of the faith. Ijma` is thus confined to the mujtahidun only in regard to matters which require expert knowledge. See for details, Bazdawi,Usul, III, 239.]
The agreement of the mujtahidun must be demonstrated by their expressed opinion on a particular issue. This may be verbal or in writing, such as by giving a fatwa in either of these forms, or it may be actual, when, for example, a judge adjudicates the issue in question; or it may be that every mujtahid expresses an opinion, and after gathering their views, they are found to be in agreement. Similarly the mujtahidun may give their views collectively when, for example, the mujtahidun of the Muslim world assemble at the time an issue is encountered and reach a consensus over its ruling.
As a corollary of the second condition above, ijma' consists of the agreement of all the
mujtahidun, and not a mere majority among them. For so long as a dissenting opinion exists, there is the possibility that one side is in error, and no ijma' can be envisaged in that situation, for ijma' is a decisive proof, which must be founded on certainty. However, according to Ibn Jarir al-Tabari, Abu Bakr al-Razi, one of the two views of Ahmad Ibn Hanbal and Shah Wali Allah, ijma' may be concluded by a majority opinion. But al-Asmidi prefers the majority view on this point, which requires the participation of all mujtahidun.[13. Amidi, Ihkam, I, 235.]
In regard to the rules of fiqh, it is the ijma' of the fuqaha alone which is taken into account.[14.Shawkani,Irshad, p.71.] The question naturally arises whether fuqaha belonging to certain factions like the Khawarij,the Shi'ah, or those who might have been charged with heresy and bid'ah are qualified to participate inijma`. According to the majority view, if a faqih is known to have actively invited the people to bid'ah,he is excluded from ijma' ;otherwise he is included in the ranks of ahl al-ijma'.[15. Abu Zahrah, Usul, p.162.] The Hanafis preclude atransgressor (fasiq) and one who does not act upon his doctrine from being among the ahl al ijma`,whereas the Shafi'is and some Malikis maintain that a mere transgression is nodisqualification. [16. Amidi,Ihkam, I, 261; `Abdur Rahim, Jurisprudence, p.122.] Some fuqaha have held that ijma` is concluded only with the disappearance of the generation (inqirad al-'asr), that is, when the mujtahidun who took part in it have all passed away. For if any of them is known to be alive, there would still be a possibility that he may change his view, in which case the ijma` would collapse. A corollary of this rule is that ijma`is retrospective, in that it only binds succeeding generations but not its own constituents.[17.Abu Zahrah, Usul,p.164.]
The majority of jurists, however, maintain that this is not a condition of ijma` and that ijma` not only binds the next generation but also its own participants, as it would only be reasonable to expect that ifijma` did not bind its participants, it should not bind anyone else either.[18. Shawkani, Irshad, p.71.] With regard to the tacit ijma `(for which see below), too, some jurists have held that it is concluded only after the death of its participants, so that it can be established that none of them have subsequently expressed an opinion. For when they break their silence they will no longer be regarded as silent participants, and may even turn a tacit ijma` into an explicit one.
The majority of ulema, nevertheless, refuse to place any importance on the `disappearance of the generation', for in view of the overlapping of generations (tadakhul al-a'sar), it is impossible to distinguish the end of one generation from the beginning of the next. Thus the period of the Companions cannot be clearly distinguished from that of the Successors, nor can any other period be so distinguished from its preceding or succeeding generations.[19. Amidi, Ihkam, I, 257; Ibn Hazm, Ihkam, IV, 154.]
However, al-Ghazali, to all intents and purposes, has resolved this question by stating that `for the formation of ijma `, it is enough that agreement should have taken place, even if only for an instant'.[20.Ghazali, Mustasfa, I, 121.]
When ijma` fulfills the foregoing requirements, it becomes binding (wajib) on everyone. Consequently,the mujtahidun of a subsequent age are no longer at liberty to exercise fresh ijtihad over the same issue.For once it is concluded, ijma` is not open to amendment or abrogation (naskh). The rules of naskh are not relevant to ijma` in the sense that ijma` can neither repeal nor be repealed. This is the majority view,although some jurists have stated that the constituents of ijma` themselves are entitled to repeal their own ijma' and to enact another one to its place. But once an ijma' is finalised, especially when all of its constituents have passed away, no further ijma' may be concluded on the same subject. Should there be a second ijma `on the same point, it will be of no account.[21. Khallaf, `Ilm, pp. 46-47; AbuZahrah, Usul, p. 167.]
Source: Principles of Islamic Jurisprudence ~ M.H.Kamali
12-21-2012, 10:31 AM
The Proof (Hujjiyyah) of Ijtihad
Ijtihad is validated by the Qur'an, the Sunnah and the dictates of reason (`aql). Of the first two, the Sunnah is more specific in validating ijtihad. The Hadith of Mu`adh b. Jabal, [20. Abu Dawud, Sunan (Hasan'strans.),III, 1019, Hadith no 3585. The full version of this Hadith appears at page 218.] as al-Ghazali points out, provides a clear authority for ijtihad. The same author adds: The claim that this Hadith is mursal (i.e. a Hadith whose chain of narration is broken at the point when the name of the Companion who heard it from the Prophet is not mentioned) is of no account. For the ummah has accepted it and has consistently relied on it; no further dispute over its authenticity is therefore warranted.[21. Ghazali, Mustasfa, II, 63-64.] According to another Hadith,'When a judge exercises ijtihad and gives a right judgment, he will have two rewards, but if he errs in his judgment, he will still have earned one reward.' [22. Abu Dawud, Sunan, III, 1013, Hadith no. 3567.]
This Hadith implies that regardless of its results, ijtihad never partakes in sin. When the necessary requirements of ijtihad are present, the result is always meritorious and never blameworthy.[23. Ghazali,Mustasfa, II, 105; Amidi, Ihkam, IV, 186.] In another Hadith, the Prophet is reported to have said: 'Strive and endeavour, (ijtahidu), for everyone is ordained to accomplish that which he is created for.' [24. Bukhari, Sahih(Istanbul ed.), VI, 84; Amidi, Ihkam, IV, 209.]
There is also the Hadith which reads: 'When God favours one of His servants, He enables him toacquire knowledge (tafaqquh) in religion.' [25. Bukhari, Sahih (Istanbul ed.), I, 25-26.]The ulema of usul have alsoquoted in this connection two other ahadith, one of which makes thepursuit of knowledge an obligation of every Muslim, man or woman,and the other declares the Ulema to be the successors of the Prophets.[26. Ibn Majah, Sunan, I, 81, Hadith no. 224; Amidi, Ihkam, IV, 230, 234; Shatibi, Muwafaqat, IV, 140.]
The relevance of the last two ahadith to ijtihad is borne out by the fact that ijtihad is the main instrument of creativity and knowledge in Islam. The numerous Qur'anic ayat that relate to ijtihad are all in the nature of probabilities (zawahir). All theQur'anic ayat which the ulema have quoted in support of qiyas (see page 217) can also be quoted in support of ijtihad. In addition, we read, in sura al-Tawbah (9:122): 'Let a contingent from each division of them devote themselves to the study of religion [li-yatafaqqahu fi'l-din] and warn their people [. . .]'Devotion to the study of religion is the essence of ijtihad, which should be a continuous feature of the life of the community.
Although the pursuit of knowledge is a duty of every individual, attaining tafaqquh, or 'erudition in religious disciplines', is necessary for those who guide the community and warn them against deviation and ignorance. On a similar note, we read in sura al-Ankabut (29:69): 'And those who strive [wa'l-ladhina jahadu] in Our cause, We will certainly guide them in Our paths.' It is interesting that in this ayah the word subulana ('Our paths') occurs in the plural form, which might suggest that there are numerous paths toward the truth, which are all open to those who exert themselves in its pursuit.
Further more, we read in sura al-Nisa' (4:59): `If you dispute over something,then refer it to God and to the Messenger.' The implementation of this ayah would necessitate knowledge of the Qur'an, the Sunnah and the objectives (maqasid) of the Lawgiver on whose basis disputed matters could be adjudicated and resolved.The Companions practiced ijtihad, and their consensus is claimed in support of it.[27. Ibn al-Qayyim, I'lam, I, 176;Mahmassani, Falsafah, p.95; Kassab, Adwa', p. 19.] In their search for solutions to disputed matters, they would base their judgement on the Qur'an and the Sunnah, but if they failed to find the necessary guidance therein, they would resort to ijtihad. The fact that the Companions resorted to ijtihad in the absence of a nass is established by continuous testimony (tawatur).[28. Ghazali, Mustasfa, II, 106; Ibn al-Qayyim, I'lam, I, 176; Kassab, Adwa', p. 19.]
The rational argument in support of ijtihad is to be sought in the fact that while the nusus of Shari'ahare limited, new experiences in the life of the community continue to give rise to new problems. It is therefore imperative for the learned members of the community to attempt to find solutions to such problems through ijtihad.[29. Cf. Kassab, Adwa', p. 20.]
Source: Principles of Islamic Jurisprudence ~ M.H.Kamali
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