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Old Saturday, December 26, 2009
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Default plz define ijma and qiyas

can sm 1 define ijma and its two types ijma_i_rukhsah and ijma_i_azimah.And qiyas also.I m a litle confus abt thse.

Last edited by Andrew Dufresne; Saturday, December 26, 2009 at 05:58 PM.
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Default Qiyas

In Sunni Islamic jurisprudence, the qiyas (Arabic قياس) is the process of analogical reasoning in which the teachings of the Hadith are compared and contrasted with those of the Quran, i.e., in order to make an analogy with a known injunction (nass) to a new injunction. As a result of this method, the ruling of the Sunnah and the Qur'an may be used as a means to solve or provide a response to a new problem that may arise. This, however, is only the case providing that the set precedent or paradigm and the new problem that has come about will share operative causes (illah)[1]. The illah is the specific set of circumstances that trigger a certain law into action. Both Sunni Islam and Shi'a Islam share Qur'anic interpretation, the Sunnah, and Ijma' (consensus) as sources of Islamic law, although the two sects differ significantly with regards to the manner in which they use these sources. The sects also differ on the fourth source. Sunni Islam uses qiyas as the fourth source, whereas Shi'a Islam uses 'aql (intellect). Other methods of deducing the law, such as mafhm al-nass (the clear implication of the text), tamthil (similarity or likeness), istihsan (juristic preference), or istislah (consideration of public interest), either explicitly rely on qiyas or use methods of analysis that are similar in their understanding of qiyaas.


1 Example of qiyas
2 Shi'a view of qiyas


Example of qiyas
For example, qiyas is applied to the injunction against drinking wine to create an injunction against cocaine use.

Identification of a clear, known thing or action that might bear a resemblance to the modern situation, such as the wine drinking.
Identification of the ruling on the known thing. Wine drinking is haraam, prohibited.
Identification of the reason behind the known ruling ('illah). For example, wine drinking is haraam because it intoxicates. Intoxication is bad because it removes Muslims from mindfulness of God. This reason behind the reason is termed hikmah.
The reason behind the known ruling is applied to the unknown thing. For instance cocaine use intoxicates the user, removing the user from mindfulness of God. It is therefore prohibited.
During the Islamic Golden Age, there was a logical debate among Islamic logicians, philosophers and theologians over whether the term qiyas refers to analogical reasoning, inductive reasoning or categorical syllogism. Some Islamic scholars argued that qiyas refers to inductive reasoning, which Ibn Hazm (994-1064) disagreed with, arguing that qiyas does not refer to inductive reasoning, but refers to categorical syllogism in a real sense and analogical reasoning in a metaphorical sense. On the other hand, al-Ghazali (1058-1111) (and in modern times, Abu Muhammad Asem al-Maqdisi) argued that qiyas refers to analogical reasoning in a real sense and categorical syllogism in a metaphorical sense. Other Islamic scholars at the time, however, argued that the term qiyas refers to both analogical reasoning and categorical syllogism in a real sense.[2]

Liberal movements within Islam often extend qiyas by the disputed practice of istihsan in order to redefine Islamic law away from conservative and traditional forms.

Shi'a view of qiyas
The Shi'a view the use of qiyas (analogy) as being an innovation which can easily lead the user to erroneous conclusions regarding matters of Fiqh. In Usul al-Kafi, in the chapter on knowledge, one finds many traditions cited from the Shi'a Imams that forbid the use of qiyas. For example:

"H 103, Ch. 11, h 9
Ali ibn Ibrahim has narrated from Muhammad ibn Isa from Yunus from Dawad ibn Farqad from one he narrated from ibn Shubruma (a judge in al-Kufa during the rule of al-Mansur) who has said the following.
"I never heard any thing like a statement I heard from Imam abu Abdallah (a.s.) and it is almost as he said, Pierced my heart." The Imam (a.s.) said, "My father narrated from my great-great-great-great grandfather, the holy Prophet (s.a.) who said, Those who act on the basis of analogy will face their destruction and lead others to their destruction. Those who give fatwas without the knowledge of the abrogating and the abrogated, the clear text and that which requires interpretation, they will face destruction and lead others to their destruction."[3]
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Default Ijma

IJMA' means consensus, that is, acceptance of a matter by a specified group of people. In Islamic jurisprudence (fiqh) the matter on which ijma' is of interest is understood in one of the two following ways:

Any matter related to Shari'ah(1)

Any matter (of interest to Muslims)(2)

The group involved in the consensus is understood in the following ways, in which an exception is made for children and those who suffer from mental disorder:

All Muslims of all times(3)

All Muslims of a particular time(4)

(In the following definitions an age after the death of the Prophet is assumed.)

All mujtahidin who are just, righteous and who avoid bid'a (innovation)(5)

All mujtahidin who avoid innovation including those who may not be muttaqin (righteous and God-fearing)(6)

Majority of all mujtahidin(7)

All mu'minin(8)

All companions of the Prophet(9)

Mujtahidin of Makka and Madina (or Kufa and Basra)(10)

Mujtahidin of Madina(11)

The first four khulafa or the first two khulafa(12)

The last three opinions are not strictly speaking definitional, that is, ijma' is not defined as agreement, say, between the first two khulafa but rather that such an agreement realizes ijma'.



Types of ijma'
Explicit (ijma' 'azima or ijma' qawli). This type of ijma' takes place as follows: A question arises and people express their different views. Then there is discussion on these views and finally a common position is agreed upon.(13)


Silent (ijma' rukhsat or ijma' sakuti). If an opinion is expressed by some and their contemporaries, after learning about it, have made no comments either in favor or against, then we have what is known as silent ijma'.(14)


Unknown opposition ('adam al-ilm bi al-mukhalif). This situation occurs when a view generally held but it is not known whether or not there are experts who disagree with it.(15)


Absolute (ijma' qat'i). This is ijma' on a matter in which there never has been any sustained difference (ikhtilaf mustaqar) and which is established with tawatur (continuity), that is, we can show that all generations of Muslims or Muslim mujtahidin agreed on the matter.(16)



The authority of ijma'
The following opinions exist among jurists about the type of authority possessed by ijma':

Ijma' provides a conclusive proof for a view.(17)


Ijma' is only an argument for a view but not a conclusive proof.(18)


Only ijma' of the companions (suhaba) provides conclusive proof.(19)


Silent ijma' is not a conclusive proof.(20)


Silent ijma' is not a conclusive proof except in case of the suhaba(21) or in case it remains in place for a period of time(22) or in case circumstances establish that silence meant approval.(23)


Ijma' established by an absence of knowledge of opposition is not conclusive.(24)



Other issues connected with ijma'
Is it possible for ijma' to take place without basis (sanad) from the Qur'an, Hadith or Qiyas (analogy)? The following views exist among jurists:

It is not possible for the Muslim Ummah or the jurists to agree on a position without sanad from the Qur'an, Hadith or qiyas.(25)


It is not possible for ijma' to take place without sanad from the Qur'an or Hadith. (Qiyas cannot be a basis for ijma'.)(26)


It is not possible for ijma' to have validity unless it is on the basis of qiyas.(27)


It is possible for ijma' to take place without any sanad from the Qur'an, Hadith, or qiyas.(28)

In the books of fiqh there are many rulings for which no sanad is found anywhere. Those who believe that ijma' is possible with sanad explain this by saying that isnad for these rulings once existed but are now lost.

Another issue raised in connection with ijma' is as follows:

If in an age jurists held one or the other of two (ijma' ala qawlayn) or more views, it is permissible to hold a view different from these two or more views. For example, if a man leaves only a grandfather and a brother as his inheritors, then there are found only two opinions concerning their shares. First, the two will share inheritance equally. Second, all inheritance will go to the grandfather. Is it possible to have a third opinion?

According to al-Amdi the answer is negative for a majority of jurists and positive for some shi'a, some Hanafi jurists and some ahl al-zahir (people who reject qiyas).(29)

According to Sadr al-Shari'ah hanafi jurists agree that ijma' of suhaba on two or more views on a matter binds us to stay within those views but they disagree concerning the ages after the suhaba.(30)



Refusal to accept ijma'
If a ruling is reached by a form of ijma' considered conclusive by some scholars, then in the eyes of those scholars that ruling must be obeyed and the failure to do so after knowing about it is haram. But what if a person refuses to accept that ruling all together? Will he be committing kufr?

Even when scholars consider a form of ijma' conclusive and binding, they do not necessarily regard the rejection of a ruling reached by it as kufr. They are in general far more cautious in declaring refusal to reject the result of ijma' on a matter as kufr than in declaring a particular type of ijma' as conclusive and binding.

Almost all jurists agree that refusal to accept an ijma' other than an ijma of suhaba or an ijma established with continuity, tawatur, in all the previous generations of Muslims (ijma' qat'i), like the Qur'anic verses, is not kufr. In case of ijma' suhaba and ijma' qat'i two cases are distinguished:

Ijma' on matters related to the fundamentals of din whose comprehension is needed by all Muslims, e.g. the belief in the oneness of God and in prophethood, the obligatory character of the five "pillars" of Islam, facing the Ka'bah while praying, the number of rak'at in each prayer, the times for hajj and fasting, prohibition of adultery, alcoholic drinks, stealing and usury.


Ijma' on matters whose knowledge is expected only from "specialists" (khawas), e.g. marrying at the same time a woman and her paternal aunt or a murderer being cut off from inheritance.

There seems to be a general agreement that refusal to accept ijma' suhaba or ijma qat'i on matters of the first category is kufr but opinions differ as to whether a refusal to accept ijma' suhaba or ijma qat'i on matters of the second category is also kufr.(31)

Imam al-Harmayn (Diya al-Din 'Abd al-Malik al-Juwayni) says that refusing to accept a method of deriving rules of shari'ah is not kufr. Therefore, a person does not accept the principle of ijma' as a valid source of rules is not a kafir. Only a person who accepts the principle of ijma' and also recognizes that a certain ruling is based on ijma' and then refuses to accept it can be declared as committing kufr.(32)



Justifying the binding authority of ijma'
Is the principle that in some form ijma' provides conclusive argument and has binding authority taught in the Qur'an and Hadith?

There is no agreement among jurists as to which statements in the Qur'an and Hadith, if any, provide justification for the principle of ijma'. Generally the jurists see a justification for the principle in the Qur'anic verses: 2:143, 3:103, 3:110, 4:59 and 4:115. But Sadr al-Shari'ah (33) finds nothing in 2:143, 3:110, and 4:115. Instead he uses 3:105, 98:4, 9:122, 4:59, 91:7, 16:43, 9:115. Allama al-Taftazani (34) however, rejects all the arguments by Sadr al-Shari'ah.

There are also some ahadith that are used in support of the principle of ijma'. Al-Ghazali(35) says that of these ahadith the strongest support for the principle of ijma' is provided by: lan tajtami'u ummati 'ala al-dalala (My Ummah cannot get together on the wrong way). But Shah Wali Allah(36) says that this hadith "does not mean that ijma' is hujja (proof)."

The truth is that there is no argument supporting ijma' on the basis of the Qur'an and Hadith for which reputed jurists have not raised a whole series of objections. And we even have reputed jurists like Imam al-Harmayn al-Juwayni who "recognized that in the received teachings there is no proof that ijma' has binding authority (wajib al-ittiba') and the final resort is to "reason" and that "the arguments on the basis of reason are very weak."(37)

The difficulty of supporting ijma' on the basis of revelation is illustrated by a report about Imam Shafi'i. It is related by Muhammad Yahya ibn Shaykh Aman(38) that the Imam was asked about a proof for ijma' from the Qur'an. The Imam went into seclusion (ihtikaf) in his house for three days and each day read the whole Qur'an in search of a proof. Finally he came up with the verse 4:115. As we have already noted this verse is not enough for Sadr al-Shari'ah and Imam al-Harmayn.

Although it would be unacceptable to establish ijma' by the use of ijma' but it is interesting to note that ijma' is not proved even by ijma' itself. To see this let us distinguish between two definitions of ijma':

As the majority view

As the unanimous view

Now the majority of jurists do not agree that the majority view constitutes ijma' with binding authority.(39) Hence under the first definition ijma' is not proved by ijma'. Take now the second definition. We have seen above there is no view of ijma' on which jurists unanimously agree except possibly ijma' suhaba and ijma' qat'i. We cannot, however, demonstrate that the suhaba believed that their ijma' or ijma' qat'i has binding authority, while such a demonstration would obviously be necessary to prove ijma' on the basis of ijma'.



Two genuine Islamic concerns
Whatever the definition and authority of ijma' may be, there is no denying the fact that the principle of ijma' addresses two genuine and very important Islamic concerns:

The need of the Muslims to know what the Islamic teachings on various matters are.


The need to form an Islamic society capable of taking unified action when such action is required.

Now basic Islamic teachings can be known easily from the Qur'an and Hadith, especially if a person is endowed with iman. The Qur'an says:

"We have made the Qur'an easy to understand and remember, so is there any to pay heed." (54:17)

However, in some details uncertainty can arise due to the following factors:

Like most statements, no matter how clear, the verses of the Qur'an and ahadith of the Prophet can be often understood in more than one way.


It may not be possible to uniquely determine which Qur'anic verses and prophetic ahadith are applicable to a given question and in which order.


It may not be certain whether some applicable ahadith are authentic or not.


The Qur'an and Hadith may not contain answers to questions faced a long period after the revelation and so people come up with their own different answers by qiyas (analogy) or by other less than completely objective approaches.

Now, as far as individuals are concerned, they can still lead righteous lives despite different possible answers to some questions of detail, as indeed Muslims have done throughout history. The Qur'an guarantees that everyone who has ikhlas (sincerity, honesty) and strives in the way of God (which includes controlling one's desires, obeying the clear commandments and practicing dhikr and fikr, that is, remembrance of God and thinking and reflecting) will be protected from the devil, that is, going astray and will be shown the path of God:

"And (the devil) said: By Your honor (O Lord) I will lead them all astray except such among Your servants as are sincere." (38:83)

"And those who exert effort in Our way we show them Our paths and God is surely with the good." (29:69)

So, individuals will be able to find the way of God despite differences in matters of detail. However, often a need is felt by Muslims for collective, united, action and in such cases differences in views can be crippling. This is why the establishment of Islamic states in Muslim countries has been found very difficult. In fact, it can be said without hesitation that after the time of four rightly guided khulafa Islam has largely existed as a way of life of individuals and not of societies. Yet it is clearly an intention of Islam to shape both individuals and societies according to its principles.

One of the purposes of ijma' is to limit differences and to prevent them from disintegrating the Muslim society. This role of ijma' is comparable to the role of the Pope in Catholicism. But ijma' has not been as effective in ensuring cohesion of the society and in providing answers to new questions. This is because ijma' is itself subject to differences of views, as we have seen above. Furthermore, it is often extremely difficult to know whether or not ijma' on a matter has taken place, so much so that Imam Ahmad bin Hambal reportedly used to say that anyone claiming ijma' (after the age of suhaba) is a liar.(40) In other words, we do not know exactly what ijma' is or what it is saying. In contrast, those who believe in papacy can know both who the Pope is and what he is saying.

This, of course, does not mean that Muslims should adopt something like the institution of papacy. The idea of a priestly hierarchy having an exclusive right to define religious doctrines and rules and given obedience as infallible is totally against the grain of Islam and is apparently condemned as shirk in the Qur'an:

"And (Jews and Christians) take their ahbar (priests) and ruhban (monks, saints) as lords besides God" (9:31)

Indeed, history shows that an institution like that of papacy can, along with cohesion and continuity in the life of a group, cause untold repression and plunge a society in the uttermost depths of darkness.

So, how can we achieve maximum enlightenment and freedom of thought and conscience along with cohesion and continuity? By following four well-known Islamic principles:

Khilafa, institution of an Islamic government

Shura, government by consultation

Sawad al-a'zam, rule by majority

Amr bi al-ma'ruf wa nahi 'an al-mukar, enjoining right and forbidding wrong.

These four principles require the following mode for the functioning of a suhaba on "decisions". These always concerned legal rulings, state policies, strategies for war, etc. In the interpretation of Qur'an and Hadith we can encounter purely theological questions (e.g. whether the ascension of Jesus was physical or spiritual). On such questions ijma' of suhaba has been seldom demonstrated, if at all.

Whatever has been said above about ijma' suhaba also applies to ijma' qat'i.

No other type of ijma' by itself constitutes a conclusive historical argument that a certain position is Islamic. Most ijma'at do carry weight but how much weight will depend on direct evidence from Qur'an and Hadith and other relevant considerations.
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Old Saturday, December 26, 2009
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Post Ijma....it's types and Qiyas.....

The Meaning of Ijma'

By: Dr. Ahmad Shafaat

(1984)

IJMA' means consensus, that is, acceptance of a matter by a specified group of people. In Islamic jurisprudence (fiqh) the matter on which ijma' is of interest is understood in one of the two following ways:

1.

Any matter related to Shari'ah(1)
2.

Any matter (of interest to Muslims)(2)

The group involved in the consensus is understood in the following ways, in which an exception is made for children and those who suffer from mental disorder:

1.

All Muslims of all times(3)
2.

All Muslims of a particular time(4)

(In the following definitions an age after the death of the Prophet is assumed.)

3.

All mujtahidin who are just, righteous and who avoid bid'a (innovation)(5)
4.

All mujtahidin who avoid innovation including those who may not be muttaqin (righteous and God-fearing)(6)
5.

Majority of all mujtahidin(7)
6.

All mu'minin(8)
7.

All companions of the Prophet(9)
8.

Mujtahidin of Makka and Madina (or Kufa and Basra)(10)
9.

Mujtahidin of Madina(11)
10.

The first four khulafa or the first two khulafa(12)

The last three opinions are not strictly speaking definitional, that is, ijma' is not defined as agreement, say, between the first two khulafa but rather that such an agreement realizes ijma'.


Types of ijma'

*

Explicit (ijma' 'azima or ijma' qawli). This type of ijma' takes place as follows: A question arises and people express their different views. Then there is discussion on these views and finally a common position is agreed upon.(13)

*

Silent (ijma' rukhsat or ijma' sakuti). If an opinion is expressed by some and their contemporaries, after learning about it, have made no comments either in favor or against, then we have what is known as silent ijma'.(14)

*

Unknown opposition ('adam al-ilm bi al-mukhalif). This situation occurs when a view generally held but it is not known whether or not there are experts who disagree with it.(15)

*

Absolute (ijma' qat'i). This is ijma' on a matter in which there never has been any sustained difference (ikhtilaf mustaqar) and which is established with tawatur (continuity), that is, we can show that all generations of Muslims or Muslim mujtahidin agreed on the matter.(16)


The authority of ijma'

The following opinions exist among jurists about the type of authority possessed by ijma':

1.

Ijma' provides a conclusive proof for a view.(17)

2.

Ijma' is only an argument for a view but not a conclusive proof.(18)

3.

Only ijma' of the companions (suhaba) provides conclusive proof.(19)

4.

Silent ijma' is not a conclusive proof.(20)

5.

Silent ijma' is not a conclusive proof except in case of the suhaba(21) or in case it remains in place for a period of time(22) or in case circumstances establish that silence meant approval.(23)

6.

Ijma' established by an absence of knowledge of opposition is not conclusive.(24)


Other issues connected with ijma'

Is it possible for ijma' to take place without basis (sanad) from the Qur'an, Hadith or Qiyas (analogy)? The following views exist among jurists:

1.

It is not possible for the Muslim Ummah or the jurists to agree on a position without sanad from the Qur'an, Hadith or qiyas.(25)

2.

It is not possible for ijma' to take place without sanad from the Qur'an or Hadith. (Qiyas cannot be a basis for ijma'.)(26)

3.

It is not possible for ijma' to have validity unless it is on the basis of qiyas.(27)

4.

It is possible for ijma' to take place without any sanad from the Qur'an, Hadith, or qiyas.(28)

In the books of fiqh there are many rulings for which no sanad is found anywhere. Those who believe that ijma' is possible with sanad explain this by saying that isnad for these rulings once existed but are now lost.

Another issue raised in connection with ijma' is as follows:

If in an age jurists held one or the other of two (ijma' ala qawlayn) or more views, it is permissible to hold a view different from these two or more views. For example, if a man leaves only a grandfather and a brother as his inheritors, then there are found only two opinions concerning their shares. First, the two will share inheritance equally. Second, all inheritance will go to the grandfather. Is it possible to have a third opinion?

According to al-Amdi the answer is negative for a majority of jurists and positive for some shi'a, some Hanafi jurists and some ahl al-zahir (people who reject qiyas).(29)

According to Sadr al-Shari'ah hanafi jurists agree that ijma' of suhaba on two or more views on a matter binds us to stay within those views but they disagree concerning the ages after the suhaba.(30)


Refusal to accept ijma'

If a ruling is reached by a form of ijma' considered conclusive by some scholars, then in the eyes of those scholars that ruling must be obeyed and the failure to do so after knowing about it is haram. But what if a person refuses to accept that ruling all together? Will he be committing kufr?

Even when scholars consider a form of ijma' conclusive and binding, they do not necessarily regard the rejection of a ruling reached by it as kufr. They are in general far more cautious in declaring refusal to reject the result of ijma' on a matter as kufr than in declaring a particular type of ijma' as conclusive and binding.

Almost all jurists agree that refusal to accept an ijma' other than an ijma of suhaba or an ijma established with continuity, tawatur, in all the previous generations of Muslims (ijma' qat'i), like the Qur'anic verses, is not kufr. In case of ijma' suhaba and ijma' qat'i two cases are distinguished:

1.

Ijma' on matters related to the fundamentals of din whose comprehension is needed by all Muslims, e.g. the belief in the oneness of God and in prophethood, the obligatory character of the five "pillars" of Islam, facing the Ka'bah while praying, the number of rak'at in each prayer, the times for hajj and fasting, prohibition of adultery, alcoholic drinks, stealing and usury.

2.

Ijma' on matters whose knowledge is expected only from "specialists" (khawas), e.g. marrying at the same time a woman and her paternal aunt or a murderer being cut off from inheritance.

There seems to be a general agreement that refusal to accept ijma' suhaba or ijma qat'i on matters of the first category is kufr but opinions differ as to whether a refusal to accept ijma' suhaba or ijma qat'i on matters of the second category is also kufr.(31)

Imam al-Harmayn (Diya al-Din 'Abd al-Malik al-Juwayni) says that refusing to accept a method of deriving rules of shari'ah is not kufr. Therefore, a person does not accept the principle of ijma' as a valid source of rules is not a kafir. Only a person who accepts the principle of ijma' and also recognizes that a certain ruling is based on ijma' and then refuses to accept it can be declared as committing kufr.(32)


Justifying the binding authority of ijma'

Is the principle that in some form ijma' provides conclusive argument and has binding authority taught in the Qur'an and Hadith?

There is no agreement among jurists as to which statements in the Qur'an and Hadith, if any, provide justification for the principle of ijma'. Generally the jurists see a justification for the principle in the Qur'anic verses: 2:143, 3:103, 3:110, 4:59 and 4:115. But Sadr al-Shari'ah (33) finds nothing in 2:143, 3:110, and 4:115. Instead he uses 3:105, 98:4, 9:122, 4:59, 91:7, 16:43, 9:115. Allama al-Taftazani (34) however, rejects all the arguments by Sadr al-Shari'ah.

There are also some ahadith that are used in support of the principle of ijma'. Al-Ghazali(35) says that of these ahadith the strongest support for the principle of ijma' is provided by: lan tajtami'u ummati 'ala al-dalala (My Ummah cannot get together on the wrong way). But Shah Wali Allah(36) says that this hadith "does not mean that ijma' is hujja (proof)."

The truth is that there is no argument supporting ijma' on the basis of the Qur'an and Hadith for which reputed jurists have not raised a whole series of objections. And we even have reputed jurists like Imam al-Harmayn al-Juwayni who "recognized that in the received teachings there is no proof that ijma' has binding authority (wajib al-ittiba') and the final resort is to "reason" and that "the arguments on the basis of reason are very weak."(37)

The difficulty of supporting ijma' on the basis of revelation is illustrated by a report about Imam Shafi'i. It is related by Muhammad Yahya ibn Shaykh Aman(38) that the Imam was asked about a proof for ijma' from the Qur'an. The Imam went into seclusion (ihtikaf) in his house for three days and each day read the whole Qur'an in search of a proof. Finally he came up with the verse 4:115. As we have already noted this verse is not enough for Sadr al-Shari'ah and Imam al-Harmayn.

Although it would be unacceptable to establish ijma' by the use of ijma' but it is interesting to note that ijma' is not proved even by ijma' itself. To see this let us distinguish between two definitions of ijma':

1.

As the majority view
2.

As the unanimous view

Now the majority of jurists do not agree that the majority view constitutes ijma' with binding authority.(39) Hence under the first definition ijma' is not proved by ijma'. Take now the second definition. We have seen above there is no view of ijma' on which jurists unanimously agree except possibly ijma' suhaba and ijma' qat'i. We cannot, however, demonstrate that the suhaba believed that their ijma' or ijma' qat'i has binding authority, while such a demonstration would obviously be necessary to prove ijma' on the basis of ijma'.


Two genuine Islamic concerns

Whatever the definition and authority of ijma' may be, there is no denying the fact that the principle of ijma' addresses two genuine and very important Islamic concerns:

1.

The need of the Muslims to know what the Islamic teachings on various matters are.

2.

The need to form an Islamic society capable of taking unified action when such action is required.

Now basic Islamic teachings can be known easily from the Qur'an and Hadith, especially if a person is endowed with iman. The Qur'an says:

"We have made the Qur'an easy to understand and remember, so is there any to pay heed." (54:17)

However, in some details uncertainty can arise due to the following factors:

1.

Like most statements, no matter how clear, the verses of the Qur'an and ahadith of the Prophet can be often understood in more than one way.

2.

It may not be possible to uniquely determine which Qur'anic verses and prophetic ahadith are applicable to a given question and in which order.

3.

It may not be certain whether some applicable ahadith are authentic or not.

4.

The Qur'an and Hadith may not contain answers to questions faced a long period after the revelation and so people come up with their own different answers by qiyas (analogy) or by other less than completely objective approaches.

Now, as far as individuals are concerned, they can still lead righteous lives despite different possible answers to some questions of detail, as indeed Muslims have done throughout history. The Qur'an guarantees that everyone who has ikhlas (sincerity, honesty) and strives in the way of God (which includes controlling one's desires, obeying the clear commandments and practicing dhikr and fikr, that is, remembrance of God and thinking and reflecting) will be protected from the devil, that is, going astray and will be shown the path of God:

"And (the devil) said: By Your honor (O Lord) I will lead them all astray except such among Your servants as are sincere." (38:83)

"And those who exert effort in Our way we show them Our paths and God is surely with the good." (29:69)

So, individuals will be able to find the way of God despite differences in matters of detail. However, often a need is felt by Muslims for collective, united, action and in such cases differences in views can be crippling. This is why the establishment of Islamic states in Muslim countries has been found very difficult. In fact, it can be said without hesitation that after the time of four rightly guided khulafa Islam has largely existed as a way of life of individuals and not of societies. Yet it is clearly an intention of Islam to shape both individuals and societies according to its principles.

One of the purposes of ijma' is to limit differences and to prevent them from disintegrating the Muslim society. This role of ijma' is comparable to the role of the Pope in Catholicism. But ijma' has not been as effective in ensuring cohesion of the society and in providing answers to new questions. This is because ijma' is itself subject to differences of views, as we have seen above. Furthermore, it is often extremely difficult to know whether or not ijma' on a matter has taken place, so much so that Imam Ahmad bin Hambal reportedly used to say that anyone claiming ijma' (after the age of suhaba) is a liar.(40) In other words, we do not know exactly what ijma' is or what it is saying. In contrast, those who believe in papacy can know both who the Pope is and what he is saying.

This, of course, does not mean that Muslims should adopt something like the institution of papacy. The idea of a priestly hierarchy having an exclusive right to define religious doctrines and rules and given obedience as infallible is totally against the grain of Islam and is apparently condemned as shirk in the Qur'an:

"And (Jews and Christians) take their ahbar (priests) and ruhban (monks, saints) as lords besides God" (9:31)

Indeed, history shows that an institution like that of papacy can, along with cohesion and continuity in the life of a group, cause untold repression and plunge a society in the uttermost depths of darkness.

So, how can we achieve maximum enlightenment and freedom of thought and conscience along with cohesion and continuity? By following four well-known Islamic principles:

1.

Khilafa, institution of an Islamic government
2.

Shura, government by consultation
3.

Sawad al-a'zam, rule by majority
4.

Amr bi al-ma'ruf wa nahi 'an al-mukar, enjoining right and forbidding wrong.

These four principles require the following mode for the functioning of a suhaba on "decisions". These always concerned legal rulings, state policies, strategies for war, etc. In the interpretation of Qur'an and Hadith we can encounter purely theological questions (e.g. whether the ascension of Jesus was physical or spiritual). On such questions ijma' of suhaba has been seldom demonstrated, if at all.

Whatever has been said above about ijma' suhaba also applies to ijma' qat'i.

No other type of ijma' by itself constitutes a conclusive historical argument that a certain position is Islamic. Most ijma'at do carry weight but how much weight will depend on direct evidence from Qur'an and Hadith and other relevant considerations.
Notes

1. Sadr al-Shari'ah 'Ubayd Allah, Tanqih wa Sharh al-Tawdih (Egypt, 1957), II, 211.

2. 'Abd al-Wahhab Taj al-Din ibn al-Subki, Jam' al-Jawani' (Cairo: Mustafa al Babi al-Halbi), second edition, II, 176.

3. Abu 'Abd al-Rahman al-Shafi'i according to Muhammad al-Shawkani, Irshad al-Fahul ila Tahqiq al-Haqq min 'Ilm al-Usul (Cairo: Mustafa al-Babi al-Halbi, 1356H/1937), first edition, 83.

4. Qadi Abu Bakr Baqalani according to: 'Abd al-'Aziz al-Bukhari, Kashf al-Israr Sharh Bazdwi (Egypt), iii, 237-239.

5. Ibid.

6. Ibid, III, 238.

7. al-Tabari and Abu Bakr Razi according to: Sayf al-Din al-Amdi, Ahkam al-Ahkam (Egypt: Muhammad Ali Sabih, 1347H), I, i20.

8. This view is held by Khawarij who consider themselves as mu'minin. See Jamal al-Din al-Asmawi, Nihaya al-Sawal fi Sharh Minhaj (Egypt: al-Maktaba al-Mahmudiyya al-Tijara, 1340H), II, 233-234.

9. Da' ud Zahiri according to: al-Amdi, op. cit. I, 117.

10.al-Amdi, op. cit., I, 125 and Muhammad Yahya ibn Shaykh Aman, Nuzha al-Mushtaq (Egypt: Matba' Hijazi, 1370H/195), 598.

11. al-Amdi, op. cit., I, 124.

12. al-Amdi, op. cit., I, 127.

13. Shah Wali Allah, Qura al-'aynayn fi Tafsil al-Shaykhayn (Dheli: Mujtaba'i, 1310H) 251-255. Also see: Muhammad Abu Zahra, Imam Ahmad bin Hambal, 267-268.

14. al-Shawkani, op. cit., 84.

15. Abu Zahra, op. cit., 267-268.

16. 'Abn al-'Ala, Fawatih al-Rahmuwat, (Bulaq, 1325H), II, 143.

17. al-Shawkani, op. cit., 78.

18. al-Amdi, op. cit., 79. Shi'a also hold the same view. For them ijma' has no authority unless it is supported by qawl ma'sum (word of an infallible imam) which is authoritative anyway (al-Bukhari, op. cit., III, 252).

19. Some hanafi jurists and Imam Bazdwi according to: al-Amdi, op. cit., 79.

20. Da'ud Zahiri, Abu Bakr Baqlani according to: al-Bukhari, op. cit., 84.

21. al-Shawkani. op. cit., 84.

22. al-Bukhari, op. cit., III, 228.

23. Abu Hamid Muhammad al-Ghazali,al-Mustasfa min 'Ilm al-Usul (Bulaq, 1325H), I,191

24. Shams al-Din ibn al-Qayyim al-Jawziyya, 'Ilam al-Mu'qi'in 'an Rabb al-'Alamin (Dheli), I, 32-33; II, 235.

25. al-Amdi, op. cit., I, 135. Shah Wali Allah says in Hujjat Allah al-Baligha (Egypt: 1352H), I, 121 that an ijma' without sanad will become a cause of tahrif (corruption) in religion as in the case of Jews and Christians.

26. al-Shawkani, op. cit., 79-80.

27. & 28. Ibid

29. Op. cit., I, 137.

30. Op. cit., II, 42.

31. al-Amdi, op. cit., I, 144; and Sa'd al-Din Mas'ud al-Taftazani, al-Talwih 'ala al-Tawdih (Egypt: Muhammad Ali al-Sahih, 1957), II, 47.

32. See Muhammad Amin al-Husayni, al-Taysir al-Tahrir (Egypt: Mustafa al-Babi al-Halbi, 1351H), III, 258.

33. Op. cit., II, 48-51.

34. Op. cit., II, 50.

35. Op. cit., I, 175.

36. al-Insaf fi Bayan Sabab al-Ikhtilaf (Dheli: Mujtabai, 1935), I, 118-119.

37. See Qadi Taqi al-Din and 'Abd al-Wahhab, al-Ibhaj fi Sharh al-Minhaj (Egypt: al-Maktaba al-Mahmudiyya al-Tijariyya, 1340H), II, 239-240.

38. Op. cit., 576.

39. al-Amdi, op. cit., I, 120.

40. Ibn al-Qayyin al-Jawziyya, op. cit., 32-33.





Qiyas in Islamic Law A Brief Introduction| Sheikh Wald b. Ibrhm al-`Ujaj, professor at al-Imam Islamic University|



Qiys is a method that uses analogy comparison to derive Islamic legal rulings for new developments.

Qiys can be defined as taking an established ruling from Islamic Law and applying it to a new case, in virtue of the fact that the new case shares the same essential reason for which the original ruling was applied.

Qiys, therefore, is a method that Muslim jurists use to derive a ruling for new situations that are not addressed by the Qurn and Sunnah, like many new developments of our age and like the customs of people not encountered in Arabia during the time of the Prophet (peace be upon him). By way of qiys, these issues can be referred back to those that are explicitly mentioned in the sacred texts.

When we know the reason why something in Islamic Law is obligatory, preferred, permitted, disliked, or forbidden, then if something else shares the same reason, it can be given the same legal ruling.

Categories of Qiys:
There are two major categories of qiys with respect to its strength as evidence: overt and obscure.

A. Obvious Comparison (qiys jaliyy):

This is where the new situation being investigated is clearly no different in its essentials from a matter that Islamic Law has a clear and established ruling for.

This is especially the case where the sacred texts clearly spell out the reason for the original ruling or where there is unanimous agreement among Muslims as to what that reason is.

In such cases, there is no need for the jurist to try to deduce a quality in the new situation that he can use to make a comparison with some precedent in Islamic Law. Everything is clear and up-front.

Consider the following examples:

1. What is the ruling when the guardian of the orphans estate burns all the orphans property?

Though there is no direct textual evidence that discusses burning the orphans property, the ruling is patently clear. It takes the same ruling as when the guardian squanders the orphans wealth on himself.

Allah says: Lo! Those who devour the wealth of orphans wrongfully, they do but swallow fire into their bellies, and they will be exposed to burning flame. [Srah al-Nis: 10]

It is prohibited for the guardian of the orphans estate to wrongfully spend the orphans wealth on himself. The reason for this ruling is obvious it brings loss to the orphans property.

This is precisely what would happen if the guardian burns the orphans property. The orphan will suffer the loss. There is no material difference between the two cases. Since the two cases share the reason for the ruling, they share the same ruling. It is unquestionably prohibited for the guardian to burn or otherwise vandalize the orphans property.

2. What is the ruling on giving ones parents a good smack?

We will not find any text in our scriptures that directly addresses this question. However, we are in no doubt that it is absolutely prohibited and sinful to do so.

We find in the Qurn that it is sinful to even mutter ugh or uff to our parents in exasperation when they ask us to do something for them.

Allah says: And your Lord has commanded that you shall not worship any but Him, and that you show kindness to your parents. If either or both of them reach old age with you, say not to them so much as ugh nor chide them, but speak to them a generous word. [Srah al-Isr: 23]

We are prohibited to say ugh to our parents, because it is abusive behavior. At the very least, it hurts their feelings. We can have no doubt that shoving them or smacking them is even more abusive and hurtful. Since the reason for prohibition is even more evident here, we can be certain that smacking our parents is unlawful and very sinful.

From these examples, there should be no question that qiys should be accepted as a legal means for establishing Islamic legislation whenever the comparison is overt and clear.

Some scholars do not consider these examples to even fall under the heading of qiys, due to how clear and obvious they are, but consider such rulings to constitute part of what the texts themselves communicate.

B. Obscure Comparison (qiys khafiyy):

This is where the new situation being investigated is not so overtly similar in its essentials to the established matter in Islamic Law that it is being compared to.

This is especially the case where the sacred texts do not spell out the reason for the original ruling or where there is disagreement among Muslims as to what that reason is.

Scholars cite as an example that the criminal liability for murder with a bludgeon is the same as that for murder with a knife, since in both cases there is an intentional and hostile act of killing.

The difference here to the examples above is that the shared reason for the ruling is one that has been deduced by the jurists from the ruling prohibiting murder. The formula an intentional and hostile act of killing is a legal construct developed by legal theorists to define when a killing is legally an act of murder. It is not something that is explicitly stated in the texts, but rather something that is deduced from them.

In such cases, there is a greater burden upon the jurist, who is required to extrapolate and explain the cause of the established ruling and then explain how that cause is also present in the new matter under investigation.

All scholars agree on calling this kind of reasoning by the name qiys.

Areas of Scholarly Agreement Regarding the Validity of Qiys as a Form of Reasoning:
Muslims are all agreed that qiys is a valid approach to reasoning in the following areas of inquiry:

1. Worldly matters: for instance, comparing one medicine to another or pricing one product on the basis of the price of similar products in the market.

2. Any qiys that was carried out by the Prophet (peace be upon him): since its consideration become certain on account of its taking place in a context of certainty.

The scholars of Ahl al-Sunnah are also in agreement that qiys cannot be applied to certain matters. It cannot be used to answer essential questions of belief or to investigate matters relating to Allahs nature and attributes if it leads to comparing Allah to His creation. Qiys can only be validly applied in these matters to extent of demonstrating that Allah is superior and transcendent to created things. Otherwise, the use of qiys will lead to the mistake of considering both Creator and His creation equally under the aegis of more general concepts. It will also lead to considering Allah as being similar to created things.

Allah says: To Allah applies the highest similitude: for He is the Exalted in Power, full of Wisdom. [Srah al-Nahl: 60]

Allah says: There is none like unto Him, and He is the All-Hearing, the All-Seeing. [Srah al-Shr: 11]

As Muslims, we must believe that Allah is free from every deficiency that exists in created beings. By contrast, every aspect of perfection applies more to the Creator than it can to anything in creation.

These matters are agreed upon.

Areas of Scholarly Disagreement Regarding the Validity of Qiys:
Scholars disagree regarding the applicability of the second type of qiys (qiys khafiyy) in matters of Islamic Law. The discussion that follows will be dealing specifically with this second type.

All of the leading scholars from among the Prophets Companions, as well as the Islamic legal scholars from all the major schools of thought agree that qiys is a source of Islamic legislation. It can be used as evidence to establish Islamic legal rulings on matters that are not directly addressed by the sacred texts. Ahmad b. Hanbal said: No one can entirely dispense with qiys.

Some legal theorists of the Mu`tazil persuasion denied the validity of qiys. The leading proponent of this line of thinking was al-Nazzm, who was followed by Ja`far b. Harb, Ka`far b. Mubashshir, and Muhammad b. `Abd Allah al-Iskf.

This line of thinking was also adopted by some scholars of Ahl al-Sunnah, most notably Dwd al-Zhir.

These scholars, in turn, differed among themselves regarding the reasons why they dismissed qiys. Some of them argued that qiys is contrary to reason. One argument given in this light was that: Delving into this method is intellectually repugnant in its own right. Another argument was: Islamic legal rulings are based on human well-being, and no one knows human well-being except the One who gave us the sacred law. Therefore, the only way we can know the sacred law is from the revelation.

Other scholars said that qiys is not contrary to reason, but prohibited by the sacred law itself. There were two schools of though that propounded this general idea.

1. The first was that of Ibn Hazm, the most prominent scholar of the Zhir school of law. He argued that the Qurn and Sunnah came with everything that is needed, so there is no need for qiys.

2. A second school of thought considered it a sin to even acknowledge the validity of qiys.

The Hanaf jurist Ab Zayd al-Dbs summarizes the opinions of those who reject qiys as follows:

Those who reject qiys are four groups. First, there are those who reject all rational evidence, and reject qiys because it is based on reason. Then there are those who hold that the only valid source of knowledge is that which is founded in rational necessity, and they argue that qiys is not founded on rational necessity.

Then there are those who do not regard qiys as a valid source of evidence for matters of Islamic Law.

Finally, there are those who argue that qiys would only a valid source of evidence for matters of Islamic Law in cases of necessity. However, there is never a need to resort to qiys, because in the absence of direct textual evidence, the default legal ruling is one of permissibility.

The truth is that qiys is a valid source of Islamic Law. The disagreements that developed regarding its validity came about after the Companions agreed unanimously that it is a valid approach, and after the Successors the students of the Companions applied qiys and endorsed it without hesitation.. This means that the disagreement came about after it had been a matter of consensus (ijm`).

General Rules for the Valid Application of Qiys:
There are a number of guidelines that must be observed for qiys to be correctly applied. We will mention these in a very brief and summarized form:

1. Qiys can never be used to establish a ruling that contravenes a ruling or legal principle established by direct scriptural evidence. This is because qiys is not to be resorted to in a matter where we have a text that gives a ruling.

2. The person who engages in deriving a ruling through qiys must have the qualifications to engage in independent juristic reasoning (ijtihd).

3. The qiys itself must be reasoned through properly. It must comply with all of the considerations that Islamic legal theorists have discussed in the books of jurisprudence.

Otherwise, the qiys will not be valid. It will be of the type that the earliest scholars condemned. However, they did not ever categorically condemn qiys.

Al-Ghazl writes: Whoever rejects qiys in principle is certainly mistaken in his thinking, and should be deemed as sinful.
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