Principles of Islamic Jurisprudence by MH kamali

In the latter case the question is one of

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Unformatted text preview: urisprudence ~ Kamali 176 It is thus clear that Iqbal retains the binding character of ijma' only insofar as it relates to points of fact, but not with regard to ijma' that is based on juridical ijtihad. This distinction between the factual and juridical ijma' will presumably not apply to the ijma` that Iqbal has proposed: the collective decisions of the legislative assembly will naturally be binding on points of law. Iqbal's proposed reform has been fairly widely supported by other scholars. It is a basically sound proposal. But to relate this to the idea of a distinction between the factual and ijtihadi ijma` seems questionable. Apart from the difficulty that might be involved in distinguishing a factual from a juridical ijma' one can expect but little support for the view that the ijma` of the Companions on ijtihadi matters is not binding. Iqbal's views have, however, been criticised on other grounds. S. M. Yusuf has observed that Iqbal was mistaken in trying to convert ijma` into a modern legislative institution. Yusuf argues that ijtihad and ijma' have never been the prerogatives of a political organisation, and any attempt to institutionalise ijma' is bound to alter the nature of ijma` and defeat its basic purpose. For ijtihad is a non-transferable right of every competent scholar, and a mujtahid is recognised by the community by virtue of his merits known over a period of time, not through election campaigns or awards of official certificates. The process of arriving at ijma` is entirely different from that of legislation in a modern state assembly. Ijma' passes through a natural process which resembles that of the 'survival of the fittest'. No attempt is made in this process to silence the opposition or to defeat the minority opinion. Opposition is tolerated until the truth emerges and prevails. Ijma' is a manifestation of the conscience of the community, and it is due mainly to the natural strength of ijma' and the absence of rigid organisation 'that no one is able to lay his hands on Islam; when anyone tries to hammer Islam, he ultimately finds to his chagrin that he has only been beating in the air'. [82. Yusuf, Studies, pp. 212-218.] Ahmad Hasan finds some weaknesses In Yusuf's criticism of Iqbal, and observes that `Dr Yusuf has probably not understood Iqbal's view correctly.' Hasan finds Iqbal's view to the effect that ijtihad should be exercised collectively instead of being a preserve of the individual mujtahidun, to be basically sound. `Ijtihad today cannot be exercised in isolation. Modern conditions demand that it should be exercised collectively. A mujtahid may be expert in Islamic learnings, but he cannot claim to be perfectly acquainted with the social conditions of a country and the diverse nature of its problems. 244.] Ahmad Hasan goes on to point out that the legislative assembly is `the right place' for the purpose of collective ijtihad, which would in turn provide an effective method of finding solutions to urgent problems. [84. Hasan, Doctrine....
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