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Muslim Law & Jurisprudence
Ijma
Ijma is the third source of Islamic law after the Quran and Sunnah.
Definition:
Etymologically Ijma means to add. By Ijma is meant hte unanimity of opinion and procedure through which any principle of law is formulated by the unanimous opinion of all Muslims.
According to Sir Abdur Rahim:
Ijma defined as agreement of all jurists mong the followers of Muhammad (PBUH) in a particular age on a qustion of Law.
Ijma is consensus of jurists' opinion. According to Prof. N. J. Colson:
Ijma is the classical theory , is the agreement of qualified legal jurists in a particular time or a given generation and such cosensus of opinion deemed infallible.
According to Joseph Schacht:
Ijma is the consensus of Scholars.
According to M. Bernard:
Ijma is the most important basis of Islamic Law. Technically it is the unaniomous doctrine and opinion of the recognized religious authorities at any given time.
W. Montgomary Watt says:
The Quran and Sunnah recognize ijma as a source of Law.
Its authority by the Quraan and Sunnah:
The Quraan has made various references about the use of Ijma. According to verse No. 71 of Surah Younas:
"Get ye then an agreement about your plan and among your partners, so you plan".
In Surah Nisah, verse No. 59:
"O ye who believe! Obey Allah and obey the Apostle, and those charged with authority among you. If ye differ in anything among yourselves refer it to Allah and His Apostle."
It has been ordained in verse No. 159 of Surah Al-e-Imran:
"And consult them in affairs of (moment) then, When thou last taken a decision, put thy trus in Allah."
"The four Sunni Schools hold Ijma as a valid source. Some Shafe'i and Maliki Jurists not only recognised its validity matters of Law and religion but also in matters connected with the organization of Army, preparation of war and other questions of administration."
After the death of the holy Prophet (PBUH), the question of selecting Hazrat Abu Bakr (RA) as the first Caliph was solved by Ijma. Colection of The Quran was also done by Ijma.
According to G. Hourani, some Shias, Kharjis and Nazzams do not recognize Ijma as a ource of Law.
Kinds of Ijma
There are five kinds of Ijma:
In this kind, jurists express their opinion by words of deeds.
In this case, a particular opinion is expressed and the other jurists do not contradict it within (say three days).
The companions used to be unanimous in their opinion. It was the most superior kind of Ijma.
It is the consensus of the learned people only.
This was Ijma by the learned people who used to reside in Madinah.
Qualities of a Mujtahid and requirements
- Only a Muslim Jurist may participate in Ijma Proceedings.
- The Mujtahid must be of sound mind.
- He must be a man of thorough judgment.
- He must have the capability of making logical deductions.
- A Mujtahid is one who has thorough knowledge of The Quran and Sunnah and Islamic Law and Jurisprudence.
- He must know about the rules and methods of analogical deductions.
Completion of Ijma
According to the accepted doctrine of four Sunni schools, there must be unanimous decision in the formal assymbly of jurists. According to the Hanafi, Shafe'i and even Maliki jurists if the number of dissension is not large, the view of the majority will be valid andtherefore binding. If the jufists agree after due delibrations, the Ijma is complete but according to some Hambli and Shafe'i jurists who regard it complete only after the death of the jurists and not before, provided that no one opposes or withdrawas from the Ijma. Maliki school only recognizes Ijma of the cimpanions or their successors who resided in Madinah. Accoding to Hanbli school the Ijma of the companions is valid only. Shafe'i and Hanafi schools recogniz Ijma even outside Madinah and of those who are jurists of the large age.
According to Abu Hurairah, If a Fatwahof a Mujtahid is published and is not opposed by his contemporaries, it is tantamount to valid Ijma. Ijma of one age may be reversed by a subsequent Ijma except the Ijma of the companions.
According to hanafi School, Ijma will be Binding if the following conditions are fulfilled:
- No companion shall have differd.
- No jurist shall have changed his mind later on.
- The decision must be proved as being either universally known or at least well-known.
- Ijma shall be based on an express text of the Quraan or a tradition of a continuous or well known character.
- It must be regularly constituted.
According to Dr. Allama Muhammad Iqbal:
In his book "Reconstruction of Religious Thought in Islam" he says, " The principleof Ijma should be applied and that the power of Ijtihad should reside not in one individual but in a body of learned Muslim scholars of advance views who may interpret the Law in the light of modern legal and social idea.
According to Asaf A. A. Fyzee:
"The third source of Law is Ijma, Consensus of opinion among the learned of the community. Although the Muslim legists give it the third place in descending order, modern criticd consider it to be the most important element in Islamic Law, and an examination of the corpus of the Fiqh reveals that a major portion of the law consists of the concurrent opinions of scholars on legal questions. We shall see later that Ijma, representing as it does the majority view among scholars, was allied to the pre-Islamic Sunnah, the prevalent usage, and thus became during the centuries to follow the most fruitful source of Law."
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