Principles of Islamic Jurisprudence by MH kamali

11761762 who tried to bring ijma closer to reality

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Unformatted text preview: her Hadith which provides that `a section of my community will continue to remain on the right path [...].' Ijma` in other words does not mean a universal agreement but only the consensus of a limited number of mujtahidun. With regard to the other ahadith that are quoted in support of ijma`, Dihlawi maintains that the two principal aims of these ahadith are the political unity of the ummah, and the integrity of the Shari'ah. The same author maintains that ijma' can be justified on the bases of all such ahadith that protect the unity and integrity of the community. But he adds that ijma` has never been meant to consist of the universal agreement of every member of the community (or of every learned member of the community for that matter), as this is plainly impossible to achieve. It has neither happened in the past nor could it conceivably happen in the future. Ijma', according to Shah Wali Allah, is the consensus of the ulema and men of authority in different towns and localities. In this sense, ijma' can be held anywhere at any time. The ijma' of the Companions during the caliphate of Umar b. al-Khattab, and the ijma` that was concluded in Mecca and Madinah under the pious caliphs, are all examples of ijma` in its relative sense. [79. Shah Wali Allah, Izalah, I, 266.] Muhammad Iqbal is primarily concerned with the question of how to utilise the potentials of ijma` in the process of modern statutory legislation. He considers it an important doctrine, but one which has remained largely theoretical. `It is strange,' Iqbal writes, that this important notion 'rarely assumed the form of a permanent institution'. He then suggests that the transfer of the power of ijtihad `from individual representatives of schools to a Muslim legislative assembly [...] is the only possible form ijma` can take in modern times'. [80. Iqbal, Reconstruction, pp. 173, 174.] In such an assembly, the ulema should play a vital part, but it must also include in its ranks laymen who happen to possess a keen insight into affairs. Furthermore Iqbal draws a distinction between the two functions of ijma', namely: Discovering the law and implementing the law. The former function is related to the question of facts and the latter relates to the question of law. In the former case, as for instance, when the question arose whether the two small suras known as 'Mu'awwazatain' formed part of the Qur'an or not, and the Companions unanimously decided that they did, we are bound by their decision, obviously because the Companions alone were in a position to know the fact. In the latter case, the question is one of interpretation only, and I venture to think, on the authority of Karkhi, that later generations are not bound by the decisions of the Companions. [81. Iqbal, Reconstruction, p.175. Iqbal goes on to quote the Hanafi jurist Abu'l-Hasan al-Karkhi as saying: 'The Sunnah of the companions is binding in matters which cannot be cleared up by qiyas, but it is not so in matters which can be established by qiyas'. (No specific reference is given to al-Karkhi's work.)] Principles of Islamic J...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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