IJM'A: THIRD SOURCE OF
ISLAMIC LAW
By:
MUHAMMAD
NASIR KHAN (L.L.M.)
please_aceeptl01@yahoo.com
Ijm'a or consensus of opinion in ranking of islamic sources of law occupies
third place, the Quran and sunnah being first and
second respectively. Islam being complete code of life covers all aspects of
life whether mundane or spiritual. As islam is not
pure dogma but a practical philosophy so it does not coop to grim environs of
the text (Quran and sunnah) but the text itself
dishes out and persists upon the muslims to put labour and ponder for solution of their problems not
encompassed in the text— Ijm'a helps in reaching that
end.
For definition
purpose it can be said that an Ijtehad is a diacritic
elbow grease of a jurist to deduct solution of a new problem in the light of
theorems laid down in the holy Quran and sunnah.
And if this struggle embroils labour of more than one
scholar (at least three and no restriction on maximum number) in reaching a
determinate point, then it is called Ijm'a or
consensus of opinion. The very word connotes exertion to the utmost.
All the four sunni schools of thought agreed
upon the necessity of ijma in matters of law and religion.But the shafi and the malik go little beyond i.e
organization of army, preparation of war and other questions of executive
administration. The authenticity of ijma as source of
islamic law can be made out from following sayings of
the holy Quran and the Prophet(P.B.U.H).
In Quran it has
been ordained, "obey Allah and obey Prophet and those amongst you who are
in authority (learned scholars)". Similarly Prophet Muhammad (P.B.U.H)
said, i. my followers will never agreed
upon what is iniquitous. ii It is incumbent upon you
to follow the most numerous body. iii If you yourself
do not cognize then question those who cognise. iv You are the best of the men and
it is your duty to order men to do what is right and to forbade them from practising what is vicious. v
Allah does not allow the people to astray after he has shown them the right
path.
As a muslim one has no other option
than to follow what is laid down in the primary source. But ijma
though first among the secondary sources, is presumptive. Hence possibility of
error is always there. It is however an on-going process and will remain intact
till cessation of this world. According to accepted opinion of four sunni schools of thought, ijma is not confined to any particular era or country.
They, generally speaking, also believe in the unanimity of opinion among all
the jurists of the era in which the decision in question is arrived at, so that
such determination may have the force of ijma. Some
doctors are also of the view that a decision reached by majority of jurists is
of autocractic nature. The hanfi,
maliki and shafi however in
majority expressed their view that such ijma is not
of an autocratic nature. Those who favour unanimity
for absolute ijma contend that every jurists in diacritic capacity may err and from the text may
be judged that entire body has least chance to err.
Majority of malikis accept ijma of plebians of madina who support
their version on the following two traditions of Prophet (P.B.U.H) i. madina throws out its dross as
fire dross of metal and ii. Islam will stick to madina
as serpent to its hole. Some hanfi doctors and malki too held that coeval determination of the first four
caliphs (some says that the first two caliphs) has the effect of ijma. According to the hanafi, maliki and shariah an ijma is completed as soon as the jurists of the epoch in
which the question arose has come to an accord thereon, after they have had
adequate time to full-blown their delibration. But
some doctors of humble and shafi say that it is
imperative to bide until the epoch in which the jurists who were parties to ijma have come to cessation i.e
all of them died without any one having detached his acquiesce or refashioned
his mind. Some lawyers are also of the view that when an ijma
is devised no individual jurist of same or subsequent age may come with
disparate mind sans when the matter is one in which the jurist before the
conclusion is known to have a disparate view or a participant jurist in ijma may happen to change his view. It is also said that ijma of one age may be revoked by subsequent ijma of same age sans ijma of
Companions of Prophet.
Among shia school of thought some
recognize ijma as cogent source of law and others
not. Those who recognise believe on postulation that
when the mujtahids coincide in a certain view, they
speak the opinion of imperceptible imam. Isna ashri, of shia
school of thought is among those who believe but confine it to Ahli-Bait. According to them there is a tradition of
Prophet that, I am leaving two things among you i.e
one is the Book and other is my outgrowth. If you supervene
them you will never awry. But sunni
generally did not accept this hadith. Khwarje do not accept ijma as
cogent source of law while Zehri admit ijma as source of law but confine it only to companions of
the Prophet. They are known as literalist.
Among kinds
there is an absolute ijma whose authority is
unwavering and one whose defiance is unchallengable
with infedility. This kind of ijma
is based upon stringent acquiesce with the requirement of law and demonstrated
unerring testimony. It is said that ijma of Companion
is of this kind. However such an ijma
of course, of higher virtuoso than other jurists. Rest of the nature kinds
have been discussed supra in limni.
Ijma by word and ijma by practise are evenly dogmatic. According to some doctors if
a fatwa of a mujtahid is moderate\reasonable and is
not antagonised, it will have force of ijma. But order of qadi (judge)
if got out has no such force as the same is always binding and cannot be antagonised. It is also said that if there is only one
jurist in a particular era his adage may also amount to ijma.
If the wizard on
which an ijma is based be of
an autocratic nature concurrence of subsequent opinion could not be added to
its conclusion, resultantly it would be superfluous e.g
election of hadhrat abu bakr as khalifa and proscribe of
eighty stripes for misdeed of drunkenness (though both of these examples are
based on analogy, but these are absolute). Zahre school does not recognize ijma
based on analogy.
There are some
pre-conditions for constitution of an absolute ijma i.e i. ijma
of companion; ii. It should based on text and not analogy; iii. unanimity (all jurists participating once agreed donot change their opinion afterwards). The humblee and shafie are of the
view that discrepency in meditation among companions
even if agreed by overwhelming majority, did not constitute ijma.
The Quran is the last among the revealed books and no further
devine guidance through revelation is possible hence
the men of highest knowledge alone are competent to deduce solution to new
problems. Their concurrent opinion on any question must be of cogent reason and
it must also be infallible.
To wrap up the
discourse it appears arrogate to quote George Bernard shaw regarding muslim
conduct in the world affairs, "islam is the best
of the religions, muslim is the worst of the
nations". What this great western scholar intends of bespeak is
injunctions of the Quran even after lapse of more than fourteen centuries, it
appears appropriate. But their collective attitude indicative of intellectual
tendency, business and official elbow grease are not in conformity with such
injunctions. They are less accomodative viz-a-viz new and modern innovations
i.e every new coinage is labled
with infedility whether it is landing on the moon or
other modern advancement. If muslim
ummah have not profligate practice of collective
intellectual approach i.e ijma,
the great scholar like Shaw would have not viewed as such. Our own poet
philosopher Dr. Allama Muhammad Iqbal,
the sage of ummah has emphasised
vitally upon muslim role in
the present day modern world based on collective reasonong
and cogetation i.e ijma, rather every cleric should build his own one and a
half inch mosque for his clan. This practice in muslims rank has proved catastrophic in all
dimensions whether mundane or spititual. At the end
it is assiduously suggested that at O.I.C level the muslim ummah should have a
forum with recognized whiz to act as Ijma Forum for
the entire ummah omCairo,
should be broaden to encompass the muslim ummah having its regional branches in all the member states
with definite and authoretative say. This is per
chance the most appropriat and accurate juncture to
act and ponder collectively as the entire anti-muslim
elements i.e
Allah's theorem will never change for any one whether muslim, hindu,
sikh, parse etc. He is architect of entire creatures
and He is with those who help themselves whether they are sitting in White
House, 10-Downing Street, Kiadh or Islam abad i.e mosque, temple, church
is immaterial in eyes of Allah. It is time to act upon. "Indeed Allah does
not change a people's lot unless they themselves change their own
characteristics" (al-Quran