IJM'A: THIRD SOURCE OF ISLAMIC LAW

By:
MUHAMMAD NASIR KHAN (L.L.M.)
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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 europe and america have been coming near and near day by day even having a single currency and the ummah on the other hand is smattering like particle of sand day by day.

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 10:13).