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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. 1
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...
2 : 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 3
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