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Unformatted text preview: in the secondary proofs such as qiyas or maslahah. There are three views on this point, the first of which is that ijma` may not be founded on qiyas, for the simple reason that qiyas itself is subject to a variety of doubts. Since the authority of qiyas as a proof is not a subject on which the ulema are in agreement, how then could ijma` be founded on it? It is further noted that the Companions did not reach a consensus on anything without the authority of the Qur'an or the Sunnah. In all cases in which the Companion are known to have reached a consensus, at the root of it there has been some authority in the primary sources. [73. Abu Zahrah, Usul, pp.165-166.] The second view is that qiyas in all of its varieties may form the basis of consensus. For qiyas itself consists of an analogy to the nass. Relying on qiyas is therefore equivalent to relying on the nass, and when ijma` is based on a qiyas, it relies not on the personal views of the mujtahidun but on the nass of the Shari'ah. The third view on this subject is that when the effective cause (`illah) of qiyas is clearly stated in the nass, or when the 'illah is indisputably obvious, then qiyas may validly form the bases of ijma'. But when the 'illah of qiyas is hidden and no clear indication to it can be found in the nusus, then it cannot form a sound foundation for ijma'. Abu Zahrah considers this to be a sound opinion: when the `illah of qiyas is indicated in the nusus, reliance on qiyas is tantamount to relying on the nass itself. Usul, pp.165-166.] Instances could be cited of ijma` which is founded upon analogy. To give an example, a father is entitled to guardianship over the person and property of his minor child. By ijma' this right is also established for the grandfather regarding his minor grandchild. This ruling of ijma` is founded upon an analogy between the father and grandfather. A similar example is given regarding the assignment of punishment for wine drinking (shurb). This penalty is fixed at eighty lashes, and an ijma' has been claimed in its support. When the Companions were deliberating the issue, `Ali b. Abi Talib drew an analogy between shurb and slanderous accusation (qadhf). Since shurb can lead to qadhf, the prescribed penalty for the latter was, by analogy, assigned to the former. The alleged ijma` on this point has, however, been disputed in view of the fact that 'Umar b. al-Khattab determined the hadd of shurb at forty lashes, a position which has been adopted by Ahmad b. Hanbal. To claim an ijma' on this point is therefore unwarranted. Transmission of Ijma` [75 Abu Zahrah, Usul, pp.166, 193.] Principles of Islamic Jurisprudence ~ Kamali 174 [74. Abu Zahrah, The issue to be examined here is the nature of the evidence by which the fact that a particular question has been determined by ijma' may be proved. From this perspective, ijma' is divided into two types, namely 'acquired' (muhassal) and `transmitted' (manqul). The first is concluded with the direct participation of the mujtahid without...
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