#14028 - Ijma - Islamic Law

Secondary Sources of Islamic Law

IJMA

• Nature of Ijma:

Ijma is the verbal noun of the Arabic word: ajma’a

• Has two literal meanings:

1. ‘Determination’ and ‘ Resolution’ i.e. to decide and determine a matter and is possible from one person

2. ‘Agreement’ and ‘Consensus’ i.e. to agree on something, and requires two or more people [this being relevant]

• In the technical sense Ijma is deemed as: The consensus of the ‘Mujtahids’ (independent jurists) from the ummah of the Prophet pbuh after his death in a determined period upon a rule of Islamic law

Hadith: often cited as proof as Ijma

“My ummah will never agree upon an error”

• Unlike Primary sources, does not have a divine element to it

• Purpose of Ijma

• Ensures the correct interpretation of the Quran, and the faithful understanding of the Sunnah:

Since a question as to whether the law deriving from the Primary sources has been properly interpreted will always be open to a measure of uncertainty and doubt, especially in cases of deduction of new rules through analogy or Ijtihad - only Ijma can put an end to this doubt, since when there is Ijma on a ruling this becomes decisive and infallible and not open for question

However, it has been primarily regarded as a source for conservatism and preserving the heritage of the past

Although, it has been argued that Ijma can be a source for also an instrument of tolerance and of the evolution of ideas in such directions as may reflect the vision of the scholars to the light of the fresh educational and cultural achievements for the community

“clearly this principle [Ijma] provides Islam with the potential for freedom of movement and a capacity of evolution. It furnishes a desirable corrective against the dead letter of personal authority” [Goldziher]

• Ensures no deviation, since Ijma only relates to issues where the primary sources are not clear, thus a law that is not in the primary sources, and neither has universal acceptance, will be questionable as to its authenticity, thus there is such a high standard required i.e. universal acceptance, to ensure consensus amongst the Muslim ummah in their practise of Islam

• Conditions of Ijma

1. The agreement or consensus must take place between ‘mujtahids’

: i.e. those who have attained the status for Ijtihad. [thus an agreement among those who have not reached this status, or are not qualified will not constitute Ijtihad]

2. The agreement must be unanimous among the mujtahids

: however small the minority may be it will not amount to Ijma, since there is the possibility that the minority opinion may be correct.

: some jurists consider a consensus amongst majority as valid Ijma, when being opposed by a minority

: other jurists consider an agreement of the majority a persuasive point, however do not call it Ijma

3. All the jurists participating in Ijma, must be from the ummah of Prophet pbuh

: ummah of an earlier Prophet will not constitute Ijma, cited on contextual evidence

4. The agreement must have taken place after the death of the Prophet

: an agreement during his lifetime is not considered Ijma; if the Prophet pbuh agreed with the Companions on an issue, then he was the source of the rule [Sunnah] not Ijma

5. The agreement must be among the mujtahids of a single determined period, even if subsequent jurists opposed them

: reason is that Ijma depends on unanimous agreement, and this would only be possible in a determined period like a generation

6. The agreement must be upon a rule of law, the ‘hukm shari’ - the rule must state that a certain thing is prohibited, permitted, valid, or void

: thus an agreement upon rules of grammar in Arabic is not Ijma, nor an agreement upon national propositions, like creation of the universe - all non-legal matters are excluded from the domain of Ijma

7. The Mujtahids must have relied upon a sanad for deriving their opinion

: a sanad is an evidence in one of the accepted sources of law i.e. Quran or Sunnah

: this appears to take away from the strength of Ijma as an independent source, whilst it is obvious that jurists will agree on a rule relying on evidence, however if it is a condition, then it appears to be the sanad that is the source of law however…

: the strength of Ijma lies in the agreement itself, and thus the condition of a sanad is to ensure that the jurists have undertaken proper Ijtihad to arrive at their opinion

[conditions suggested by some jurists; not majority]

8. The death of those jurists who participated in the Ijma

: quote the example of Hadrat Ali in the case of the sale of the ummahat al-awlad, they maintain that Ijma cannot be treated as final as long as the participating mujtahids are alive

: majority view is more practical, and does not see this as a condition, since otherwise people would have to wait for many years to finally benefit from the decision come to

9. The Ijma should have been transmitted to the later jurists by way of tawatur

: since Ijma is a definitive evidence, its mode of transmission should also be definitive

: majority of the jurists do not accept this as a condition

• Types of Ijma

1. Explicit Ijma ‘Ijma Qawli’

2. Tacit Ijma ‘Ijma Sukuti’

Explicit Ijma:

• This is where the legal opinions of all the jurists of one period converge [unite] in relation to a legal issue, and each one of the mujtahids states his opinion explicitly

• This may happen when all of them are gathered in one session, and an issue is presented, and they collectively express a unanimous agreement; explicitly

• Or… where an issue is raised in a certain period and all the jurists, in turn, issue similar fatwas independently and at separate times

: this allows more flexibility, and makes the existence of Explicit Ijma more realistic and practically possible, since not all the mujtahids need to be in the same place

Tacit Ijma:

• This takes place when some mujtahids, one or more, issue a verdict on a legal issue and the rest of the mujtahids come to know of it during the same period, but they keep silent; they neither acknowledge it nor refute it expressly

• Conditions for Tacit

1. The silence must be free of all external indications that pointto agreement or disagreement

: if an indication of some sort is found that conveys agreement then Ijma is explicit rather - if however an indication is found that points to disagreement, no Ijma can be said to have taken place

2. The silence of the mujtahid should be maintained for a considerable period of time

3. The issue must be one which Ijtihad is permitted

: these are issues in which the primary sources are probable (zanni)

: If the issue is one which Ijtihad is not permitted, i.e. ‘qati’, evidence having only one meaning, then the silence of some jurists cannot be considered to be there tacit approval, because the jurists are not supposed to open up these issues

• Legal Strength of Ijma

• Majority of jurists agree that explicit Ijma is a definitive source and is obligatory to act upon; its opposition is prohibited

• Ijma enhances the authority of rules which are of speculative origin

Thus since speculative rules do not carry binding force, but once there is Ijma on the rule they become definitive and binding

e.g. the Companions have using their Ijma upheld the ruling on a solitary Hadith - thus the rule is elevated into a binding rule of law

e.g. the prohibition concerning unlawful conjunction i.e. simultaneous marriage to the close relatives of one’s wife is a definitive ruling based on Ijma, which was originally sourced from a solitary hadith

• Once Ijma is established it becomes a authority in its own right, and its roots in the primary sources are weakened - it thus becomes the common practise to quote the law without reference to its source

Shah Wali Allah: “one of the reasons which induced the jurists to recognise Ijma as the third source of Shariah Law” is that the significance of Ijma renders the incentive to quote authority weakens - since it becomes a source of law in itself to quote from

• Arguments for recognition of Ijma

From Quran:

4: 115

“If anyone contends with the Messenger even after guidance has been plainly conveyed to him, and follows a path other than that of the believers, we shall leave him in the path he has chosen, and land him in hell. What an evil refuge”

• This has been explained as suggesting that Allah has promised hell and a bad ending to those who follow a way different from that of the believers, and the way of the believer is determined by explicit and unanimous Ijtihad. Thus consensus after Ijtihad is the true path to be followed, and it is not proper to go against it.

• And the way of the beliver refers to their agreement, and the way they have chosen in other words their consensus

However…

• This argument can be refuted, in that the intended meaning in this verse of the way of the believers is following the Prophet, helping him and repelling his enemies. It does not mean following what the mujtahids have agreed upon with respect to the ahkam

4: 59

“O you who believe, obey God, and obey the Messenger, and those charged with authority among you”

• Those in authority is expressed to be referring to the ‘ulu al amr’ in modern context a mujtahid, thus Allah is explicityly requirement obedience to them

• Al-Fakhr al-Razi; this verse also supports the infallibilty of Ijma, since God has commanded obedience to ‘ulu al amr’ the judgement of the ulu al amr must therefore be immune from from error [Razi, Tafsir]

• According to a commentary attributed to Ibn 'Abbas, ulu al-amr in this ayah refers to ulema, whereas other commentators have considered it to be a reference to the umara ,...