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Xpert
12-06-2011, 08:33 PM
Ijma
Q. Define and discuss Ijma and Qiyes as source of Islamic law. (2002)
Q. Define Ijma. What are its kinds and how it is conducted. (2002/A, 2005/A)
Q. Ijma is a valid surce of Islamic law. (1995, 1997, 2000)
Q. Define Ijma. What are its kinds? How it is conducted? (2006/S)
1. Introduction
“Ijma” is the primary source of law. It means determination or consensus. The society which was established by the Holy Quran and the Sunnah is a living society so the Allah almighty gave sanction to the consensus of the Muslim to meet the arising needs of the time.
2. Meaning and definition of Ijma
(I) Meaning of Ijma
Ijma is the verbal noun of the Arabic word Ajmaa it is used in two senses.
(i) Determination and resolution
(ii) Agreement upon a matter
(II) Definition of Ijma
“Ijma is defined as agreement of the jurists among the followers of Mohammadan in a particular age on a question of law.”
3. Basis of Ijma
Ijma may be based on:
(i) Quran
(ii) Hadith or
(iii) Analogy
4. Reasons or arguments in support of Ijma
Allah almighty has completer the Islamic religion and Hazrat Muhammad (Peace Be Upon Him) was the last of the Prophets (Peace Be Upon Him), so it necessarily follows that any rule of law, which is not found to be explicitly laid down in the Quran or by the precepts of the Holy Prophet, must be capable of being deduced from them, so Ijma is permitted.
(I) Quranic verses in support of Ijma
Following Quranic verses support the conception of Ijma.
“You are the best of man, and it is your duty to order men to do what is right and to forbid them from practicing what is wrong.”
“Obey God and obey the Prophet (Peace be Upon Him) and those amongst you who have authority.”
“If you yourself do not know, then question those who do.’
(II) Hadith in support of Ijma
Following Ahadith also support the concept of Ijma.
“My following will never agree upon what wrong.”
“It is incumbent upon you to follow the most numerous body.”
“Whoever separates himself (from the main body) will go to hell.”
5. Kinds of Ijma
Following are the kinds of Ijma
(i) Express Ijma or Ijma Qawli
(ii) Tacit Ijma or Ijma Sakuti
(I) Explicit Ijma
Explicit Ijma is one in which the legal opinions of all the jurists of one period coverage in relation to a legal issue, and each of them states his opinion explicitly.
(a) It may take place when all the jurists are garthered in one session and an issue is presented to them and they collectively expressed a unanimous opinion.
(b) It may also take place when an issue is raised in a certain period and all the jurists in turn issue similar fatwas independently and at sepaeate times.
(II) Tacit Ijma
(III) Tacit Ijma takes place when some mujtahid 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, neither acknowledge it nor refuse it expressly.
6. Who can perform Ijma
Only Muslim Mujtahids or jurists can perform Ijma. He must possess the following qualifications.
(i) Scholar of Quran and Sunnah
(ii) Knows Qiyas
(iii) Expert of Arabic language
(iv) Impartial thinking
(v) Well versed with up to date knowledge
(vi) Knows the principal of Naskh
(vii) Conversant with the science of usul and faro
(viii) Competent to expound law.
7. Conditions for the validity of Ijma
Following are the conditions for the validity of Ijma.
(I) Ijma by mujtahids
The Ijma must be performed by Mujtahids i. e those who have attained the status of Ijtihad.
(II) Unanimous opinion
There must be unanimous opinion among all mujthahids upon a Hukm shari.
(III) Performed by Muslims
All the jurists participating in Ijma must be from the Ummah of Hazrat Muhammad (Peace be Upon Him).
(IV) After the death of Holy Prophet (Peace be Upon Him)
The Ijma must have taken place after the death of Holy Prophet (Peace be Upon Him).
(V) In a determinate period
The Ijma must be performed by jurists of single determined period i. e. of the same generation.
(VI) Upon rule of law
The Ijma must be upon rule of law and all-non legal matters are excluded from the domain of Ijma.
(VII) Reliance upon sanad (Evidence)
For deriving their opinion, Mujtahids should relied upon some sanad (evidence).
8. Ijma as a source of law
Ijma as a third source of law and under the circle of Quran and Sunnah’s delegation many issues can be resolved by Ijma.
(I) Enforcement of ordains of Quran and Sunnah
Ijma as a source of law helps in discovering the law and enforces the principals laid down in Quran and Sunnah.
(II) Interpretation of Sharia
Ijam help in interpretation of laws of Sharia, according to the changing needs of times.
(III) New legislation can be made
To achieve the objects of Quran and Sunnah, new legislation can be made through the process of Ijma.
(VI) First Ijma performed by Muslims
The election of Hazrat Abu Bakr to the caliphate by the votes of the people was based of Ijma.
9. Legal effect of Ijma
The law laid down by consensus of opinion is authoritative and binding. But in its theological sense, a decision of Ijma would be of absolute authority only if it conforms to the following conditions.
(i) No opinion to the contrary should have been expressed on the question by any of the companions, or by other Mujtahids before the formation of the Ijma.
(ii) None of the Mujatahids taking part in the decision should have afterwards changed his opinion.
(iii) The decision must be proved as being either universally knows or well-knows.
(iv) It should be based on an express text of the Quran or a tradition of a continuous or well-knows character.
(v) It must be regularly constituted.
10. Ijma and western concept of “opinion prudentium
“Opinion prudentium” which meaqns the opinions and decisions of lawyers is parallel concept of Ijma in the western society. In Roman law the lawyers were empowered to give opinions by Emperor. With the passage of time such opinions become part of their legal system. However the concept of Ijma has wider scope than the concept opinion prudentium which is also knows as “Responsa Prudentium.”
11. Ijma in modern period
According to the accepted opinion of all four sunni schools, Ijma is not confined to any particular age or country. The underneath principal of Ijma is that if a rule or principal is upheld collectively by the highest legal forum in the land, then such a principle must be followed by those subordinate to this forum. In the earlier stages, this forum was confined to jurist companions then the leading jurists of each school. Today the forum would be the highest court in each Muslim country.
12. Conclusion
To conclude, I can say, that Ijma is an essential and characteristic principal of Sunni Jurisprudence, one upon which the Muhammadan Community acted as soon as they were left to their own resources. It may be constituted by decision expressed in words or by practice of the jurists. The number of jurists participating in Ijma need not be large and Ijma of one age may be reversed by subsequent Ijma of the same age.