inceif, kuala lumpur
TRANSCRIPT
Introduction
j ’ i d d b h j i f• Ijma’ is regarded by the majority of jurists as the third source of Islamic law jafter the Quran and Sunnah.
Ij ’ h b h i• Ijma’ has been the most important validation of various decisions within Islam for centuries.
A i i l d f f I l i l• As a principle and proof of Islamic law, ijma’ is a binding proof. j g p
Definition of Ijma’• The literal meaningsThe literal meanings
• Ijma’ is a noun derived from the Arabic word Ajma'a referring to consensus.
• According to the literal meaning unanimous/ unified and ijma’ have the same meaning and concept.
Ij i A bi h t i• Ijma in Arabic has two meaning:
• 1: determination and resolution1: determination and resolution.
• Allah says: (determine your plan and among your partners) (10:71).
ه للواتل عليهم نبأ نوح إذ قال لقومه ياقوم إن آان آبر عليكم مقامي وتذآيري بآيات ا• ي ي م م ح مثم ال يكن أمرآم عليكم غمة ثم اقضوا إلي فأجمعوا أمرآم وشرآاءآم فعلى الله توآلت
وال تنظرون Th P h t th h h t l d t f t i t• The Prophet says: the person who has not resolved to fast prior to dawn has no fast. This hadith convey the of deciding and resolving.
Cont. • 2: unanimous agreement upon something.
• The Arabs said: The people agreed upon such• The Arabs said: The people agreed upon such and such matter. أجمع القوم على آذاTh diff t b t th t lit l i i• The different between the two literal meaning is:
• in the first meaning is that ijma is possible from one person.
• whereas in the second meaning it requires two or more persons.
Cont. • Technically the meaning of ijma
• Ijma is the consensus of all Mujtahiddin (independent jurists) from the ummah of theProphet Muhammad (PBUH) after his death in a determined period upon a rule of Islamic law (hukm shari).
اتفاق المجتهدين من أمة محمد صلى اهللا عليه وسلم بعد وفاته في عصر من العصور •.على حكم شرعي
• Some scholar use the term of Alh al hall wa al aqd أهل الحل والعقد which means the mujtahidine.
Definition • Al Amidi (d 615AH/1218CE) define ijma as the unanimous• Al‐Amidi (d.615AH/1218CE) define ijma as the unanimous agreement of the mujtahiddin of the Muslim community of any period following the demise of the Prophet Muhammad on any matter.
• The above reference in the definition to ‘any matter’ implies that ijma’ applies to all judicial (shar’i) intellectualimplies that ijma applies to all judicial (shar i), intellectual (‘aqli), customary (urf) and linguistic (lughawi) matters.
• Al‐Ghazali (d. 1111 AH) defined ijma’ as “agreement of the community of Muhammad on a religious point” .
• Abul Husayn al‐Basri (d. 436 AH) defined the word ijma’ as "agreement of a group (jama'ah) on a certain matter of byagreement of a group (jama ah) on a certain matter of by action or abandonment.”
Cont. • Ijma is acceptance of a matter by a specified• Ijma is acceptance of a matter by a specified group of people.
• In traditional concept, it is only the ‘ulama’ who are capable of achieving consensus. p g
• The classical definition of ijma’, as laid down by Ulama of Usul is categorical on the basisby Ulama of Usul is categorical on the basis of the universal concept.
• consensus of the scholars of the Muslim community as a whole can be regarded as y gconclusive ijma’.
Cont.
• ijma’ is considered binding by Usuliun.
• It is extremely difficult to prove ijma’ on particular issues, particularly in the case of issues open to ijtihad or tawil.
• The only form of ijma’ upheld by majority is the ijma’ of Sahabis only. ijma of Sahabis only.
• Majority of Ulama of Usul think that ijma’ can take place on Sharii and devotional (Ibadah) and beliefplace on Sharii and devotional (Ibadah) and belief (Itiqad) matters.”
Binding Authority of Ijma’• 1: Surah An‐Nisaa 1151: Surah An Nisaa 115
نوله ما ويتبع غير سبيل المؤمنين يشاقق الرسول من بعد ما تبين له الهدى ومن •تولى ونصله جهنم وساءت مصيرا
• “And whoever contradicts and opposes the Messenger• And whoever contradicts and opposes the Messenger (Muhammad صلى اهللا عليه وسلم) after the right path has been shown clearly to him, and follows other than the believers’ way, We shall keep him in the path he has chosen, and burn him inWe shall keep him in the path he has chosen, and burn him in Hell ‐ what an evil destination!”
• “The way of the believers” in this verse refers to the agreement• The way of the believers in this verse refers to the agreement of the believers and the way that they have chosen to their consensus.
• adherence to the way of the community is binding and• adherence to the way of the community is binding and departure from it is forbidden.
• That departing from the believers’ way has been approximated to disobeying the Prophet both of which are forbiddento disobeying the Prophet, both of which are forbidden.
Cont. • 2: In another verse Allah says: “You are the best2: In another verse, Allah says: You are the best community that has been raised for mankind. You enjoin right and forbid evil and you believe inenjoin right and forbid evil and you believe in Allah”. (‘Ali‐Imran 3:109)
• This verse shows some of the outstanding merits• This verse shows some of the outstanding merits of the Muslim community.
h h b• Base on this the community cannot not being capable on agreeing on an error, otherwise the
ld h d h h hQuran would not have praised the ummah in such terms.
Cont.
3 i th All h• 3: in another verses Allah says:
• “Cling firmly together by means of Allah’s rope and do not separate”. (‘Ali Imran 3:102)
• This verse forbids disunity and opposing the ijma’ y pp g jis a form of disunity.
• There are also many hadith which were quoted byThere are also many hadith which were quoted by the scholars as the proofs of ijma’.
• The hadith which is most frequently quoted in• The hadith which is most frequently quoted in support of ijma’ is:
“M it h ll ”• “My community shall never agree on an error”.
Conditions for Validity of Ijma’• In order for ijma’ to be valid several conditions which are• In order for ijma to be valid, several conditions which are imposed by the majority of jurists that must be met which are:
1 Th t t k l jt hid h h1. The consensus must take place among mujtahids, who have attained the status of ijtihad.
• An agreement among those who have not reached the g gijtihad status or who are not qualified will not constitute ijma.
• This condition exclude the non mujtahidThis condition exclude the non mujtahid.• There are a number of mujtahidun available at the time when the issue is encountered. C ill i l h i l li f• Consensus will never exist unless there is a plurality of concurrent opinion.
• No ijma’ can be materialized when there is only a single j y gmujtahid in the community.
Cont. 2: Unanimity is a prerequisite of ijma’.
• The agreement must be unanimous, that is among all the mujtahids.
• All themujtahidun, regardless of their locality,All the mujtahidun, regardless of their locality, race, color and school or following, must reach a consensus on a juridical opinion at the time an consensus on a juridical opinion at the time anissue arises.
• The presence of a dissenting view even on the• The presence of a dissenting view, even on the part of a small minority, prevents the possibility of ijma’of ijma .
Cont. 3 All the jurists participating in ijma’3. All the jurists participating in ijmamust be from the ummah of Muhammad (PBUH).
• This based on the above hadith that it is only the Muslim ummah that isit is only the Muslim ummah that is protected against error in collective agreement.
Cont.
4. The agreement must have taken place ft th d th f th P h t (PBUH)after the death of the Prophet (PBUH).
• Thus an agreement during his life is not us a ag ee e t du g s e s otconsidered ijma.
• If the Prophet agreed with the companion on an issue, than he was p ,the source of the rule (sunnah) not ijamijam.
Cont. 5 Ijma’must be among themujtahids of a single5. Ijma must be among the mujtahids of a single determined period. (this is the meaning of the generation in ijtihad – inqirad al asr) Even if some ofgeneration in ijtihad inqirad al asr) Even if some of the jurists of the following or subsequent period opposed them.opposed them.
• The reason is that the constitution of ijma depends upon the unanimous agreement of the jurists andupon the unanimous agreement of the jurists and this is the only possible in a determined period.
• The occurrence of ijma’ would become impossible ifThe occurrence of ijma would become impossible if the period were left open and the opinions of all the jurists of all periods were taken into account.ju sts o a pe ods e e ta e to accou t
Cont.6 The agreement of themujtahidunmust be6.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 byThis may be verbal or in writing, such as by giving a fatwa in either of these forms.
Si il l th jt hid i th i• 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.
Cont. 7 Ij ’ t b l f l th h k h i’7. Ijma’must be upon a rule of law, the hukm shari’.
• An agreement upon a rule of grammar in Arabic would not be ijma.
• The rule must state that a certain thing is gprohibited, permitted, valid or void.
8. The ijma should have been transmitted to the8. The ijma should have been transmitted to the later jurists by way of tawatur. Because the ijmais a definitive evidence.is a definitive evidence.
• However the majority of scholar do not accept this conditionthis condition.
Types of Ijma’Ij ’ i di id d i diff• Ijma’ is divided into different types:
( )• Explicit (ijma’ qawli): This type of ijma takes place by expressing the legal opinion by statement, declaration or qawl every mujtahid express hisdeclaration or qawl, every mujtahid express his opinion either verbally or by actions explicitly.
• The case will be as follows:The case will be 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.
• Can be achieved by written agreement of mujtahidin.
Cont. • Silent‐ Tacit (ijma’ sukuti) : whereby some of the mujtahidunor more issue a verdict on a legal issue and the rest of the mujtahidun come to know of it during the same period, but they keep silent they neither acknowledge it nor refute itthey keep silent, they neither acknowledge it nor refute it expressly.
• Views of the scholars on Silent‐ Tacit ijmaViews of the scholars on Silent‐ Tacit ijma• “According to the jumhur ulama, explicit ijma’ is definitive and binding. g
• Tacit ijma’ (sukuti) is a presumptive ijma’ which only creates a probability (zann) but does not preclude the possibility of fresh ijtihad on the same issue.
• Since tacit ijma’ does not imply the definite agreement of all its participants, the ulama have differed over its authority as a proof.
Cont.
• The majority of ulama, including al‐Shafi'i, have held that it is not a proof and that it does not amount to more than the view of some individual mujtahidun.
• But the Hanafis have considered tacit ijma’ to be a proof provided it is established that the p pmujtahid who has remained silent had known of the opinion of other mujtahidun but then, having p j , ghad ample time to investigate and to express an opinion, still chose to remain silent. p ,
Cont.
• If it is not known that the silence was due to fear or taqiyyah (hidingwas due to fear or taqiyyah (hiding one's true opinion), or wariness of pinviting disfavor, then the silence of am jtahid ill not be considered asa mujtahid will not be considered as agreement. g
Summary of opinion
• 1: according to Hanafi and hanbali this type of ijama Is valid and acceptable. j p
• 2: according to shafi, maliki, isa inb aband l b kil i it i t lid d t bland al bakilani it is not valid and acceptable.
• 3: it is not ijma but it is valid evidence. Karhi(hanafi), Amidi (shafi), inb Hajib (maliki).
• the silent ijma should be treated as ijma• the silent ijma should be treated as ijmaand become a valid source if there is no fear t id th l l i ito provide the legal opinion.
Conditions of tacit ijma (sukuti)
F th f t it ij ’ th f ll i• For the occurrence of tacit ijma’, the following conditions must be met:
1.The silence must be free of all external indications that point to agreement or disagreement.
• If an indication of some sort is found thatIf an indication of some sort is found that conveys agreement, then ijma’ is not tacit, rather it is explicitrather it is explicit.
• If an indication is found that points to disagreement no ijm’a can be said to have takendisagreement, no ijm a can be said to have taken place.
Cont.
2.The silence of mujtahid should be maintained for a considerable period of ptime.
Th d ti t b fi d b th• The duration cannot be fixed, because the issues subject to ijtihad and the formulation of an opinion require time, which may vary for each mujtahid.
Cont. 3. The issue must be one in which ijtihad is permitted.p
• If the issue is one in which ijtihad is not permitted that is the controlling evidence ispermitted, that is the controlling evidence is qat’i having one meaning, then the silence of
j i b id d isome jurists cannot be considered tacit approval, because jurists are not supposed to open up these issues.
Categories of ijma
1: Ijma ahl al madina (city of the Prophet).
2: Ijma ahl al Haramain and ahl al Misrain. j– ahl ahl Haramain (Makah & Madina) in Hijaz
– ahl al Misrain (Basra & Koufa) in Iraqahl al Misrain (Basra & Koufa) in Iraq
3: Ijma al shaikhain (Abu Bakr & Umar ibn Khatab)
4 Ij l K l f l hidi (Ub B k U4: Ijma al Kulafa al rashidin (Ubu Bakr, Umar. Othma, Ali).
5: Ijma al itra (Fatima, Hassan & Hussain).
The sanad of Ijma• The sanad of ijma is the evidence upon which the• The sanad of ijma is the evidence upon which the jurists reply for arriving upon a consensus.
B h ij b d d l• Because the ijma cannot be grounded on personal opinion (ray).
• Evidences qualifying as sanad:q y g
• 1: Quran: the Quran can be a valid sanad for ijma.
• The ijma of scholars on the prohibition of• The ijma of scholars on the prohibition of marriage with the grandmother. Is the verse: (forbidden unto you (for marriage) are your(forbidden unto you (for marriage) are your mothers).
Cont.
• 2: Sunnah: sunnah can be a valid source for sanad for ijma.source for sanad for ijma.
• The consensus of the scholar on the prohibition of sale of food prior to possession by the buyer.possession by the buyer.
• The sanad is the tradition: whoever buys food should not sell it untill he has taken possession of it.has taken possession of it.
Cont. 3 Qi h i di h j i3: Qiyas: there is disagreement among the jurists whether the analogy can be a sanad for ijma or not.
The legal opinion on this matter: 1 f h l i th t i t b• 1: a group of scholar opine that qiyas cannot be a sanad for ijma.
• This is the opinion of shia daoud al dahiri (founder of• This is the opinion of shia, daoud al dahiri (founder of dahiri school of law) and ibn jarir al tabari.
• They argued that qiyas is a probable (zanni) evidenceThey argued that qiyas is a probable (zanni) evidence, while ijma is a definitive evidence, and it is not proper to construct a definitive evidence upon a probable evidence.
Cont. h j i f h h l• 2: the majority of the scholars accept
qiyas as a valid sanad for ijma. q y j
• They argued that a khabar wahid is a b bl id i i dprobable evidence, yet, it is accepted as
a valid sanad for ijma. j
• The analogy traces its logic back to an l i h f h Q d hasl in the texts of the Quran and the
sunnah.
Cont. • 4: Maslaha: Similar argument on the maslahah whether can be a4: Maslaha: Similar argument on the maslahah whether can be a
sanad for ijma or not.
• the companion agreed on the validity of maslaha as a sanad for ijma.
• Consensus of the companion on land of iraq, and new other land to be kept in the hands of those in possession as kahraj land again inbe kept in the hands of those in possession as kahraj land, again in the interest of the ummah.
• Consensus of the companion to provide a compensation/ consideration to the judge, Khalifa (rulers), and the army.
• Consensus of the companions on the collection of the Quran.
C f th i t dd th d d d i• Consensus of the companions to add the second adan during Othman ibn Afan, to inform the Muslim.
• The sanad for these ijma in the maslaha. e sa ad o t ese j a t e as a a
• However the ijma base on maslahah is subject to changes if the maslaha changes.
Roles of Ijma’
j ’ l i l l i h• Ijma’ plays a crucial role in the development of Shariah and Islamic pjurisprudence.
Th i i b d f fi h i h d• The existing body of fiqh is the product of a long process of ijtihad and ijma’. g p j j
• Since ijma' reflects the natural evolution d f id i h lif f hand acceptance of ideas in the life of the
community, the basic notion of ijma’ y, jcan never be expected to discontinue.
Cont.
• Ijma’ continued to play a role in consolidating and unifying the law.
• Ijma’ ensures the correct interpretation of the Quran.Quran.
• the faithful understanding and transmission of the Sunnah and the legitimate use of ijtihadthe Sunnah, and the legitimate use of ijtihad.
• Only ijma’ can put an end to doubt.
• Ijma’ has primarily been regarded as the instrument of preserving the heritage of the past.
Cont. • ijma’ is an instrument of tolerance and of the evolution of ideas.
• Ijma’ enhances the authority of rules which are of speculative origin.
• Speculative rules do not carry a binding force, but once an ijma’ is held in their favor, they become definite and bindingbinding.
Cont. • Ijma’ has also played a role in regard to ahadith that were not equally known to all the mujtahidun especially during the period preceding the collection and compilation of p g pHadith.
• It was through ijma’ that some scholars were• It was through ijma that some scholars were informed of the existence of certain ahadith.
• Ijma’ represents authority.
• Once an ijma’ is established it tends toOnce an ijma is established it tends to become an authority in its own right.
Feasibility of Ijma’ in Modern World
• Some modern scholars have said that ijma’ does not appear to be a practical principle and cannot operate as a source of law in the modern times.
• “The modern critics of ijma’ consider that ijma’ according to its classical definition fails to relateaccording to its classical definition fails to relate to the search for finding solutions to the problems of the community in modern timesproblems of the community in modern times. Ijma’ is hence too slow a process to accommodate the problems of social change ”accommodate the problems of social change.”
Cont.
• Therefore, with an effort to bring the doctrine into conformity with thedoctrine into conformity with the realities of the modern age and in accordance with the spirit and vision of Islam, Muslim thinkers in the modernIslam, Muslim thinkers in the modern period are developing the concept of ij ’ di t d ditiijma’ according to modern conditions.
Cont.
Abd l W h b Kh ll f i f h i h• Abdul Wahab Khallaf is of the view that ijma’ of classical definition is no longer possible in modern times (because of huge number of scholars spread over continents). p )
• Old style ijma’ is no longer possible.
l l l ’ b bl h d h h• Only local ijma’ can be established, which is useful in lawmaking through Parliament but they cannot be (by definition) binding forever.
ConclusionsI l i th ij ’ i l• In conclusions, the ijma’ involve consensus usually between a groups of Muslim scholars, the l d i l th ti M liulama and may even involve the entire Muslim
community, the ummah.
• Ijma is a source of Shariah in Islamic jurisprudence.
• Ijma’ will render any ruling absolute and binding.
• modern scholars have said that ijma’ does notmodern scholars have said that ijma does not appear to be a practical principle and cannot operate as a source of law in the modern times.operate as a source of law in the modern times.
Thank you