Principles of Islamic Jurisprudence by MH kamali

Similarly while quoting the principles of islamic

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Unformatted text preview: nded on ijtihad, the mujtahid must rely on an indication (dalil) in the sources which is either decisive (qat'i) or speculative (zanni). If the former is the case, the community is bound to know of it, for a decisive indication in the nusus could not remain hidden from the entire community. Hence there would be no need for ijma` to substantiate the nass or to make it known to the people. Furthermore, when there is qat'i indication, then that itself is the authority, in which case ijma' would be redundant. Khallaf, `Ilm, p. 49.] Ijma`, in other words, can add nothing to the authority of a decisive nass. But if the indication in the nass happens to be speculative, then once again there will be no case for ijma': a speculative indication can only give rise to ikhtilaf, not ijma'. [58. Khallaf, `Ilm, p 49; Shawkani, Irshad, p.79.] According to a report, `Abdullah b. Ahmad b. Hanbal quoted his father to have said: It is no more than a lie for any man to claim the existence of ijma`. Whoever claims ijma` is telling a lie. Shawkani, Irshad, p.73.] The jumhur ulema, however, maintain that ijma' is possible and has occurred in the past, adding that those who deny it are only casting doubt on the possibility of something which has occurred. Note for example the ijma' of the Companions on the exclusion of the son's son from inheritance, when there is a son; and their ijma' on the rule that land in the conquered territories may not be distributed to the conquerors; or their ruling that consanguine brothers are counted as full brothers in the absence of the latter. [60. Abu Zahrah, Usul, p.159.] This last rule is based on a Hadith in which the Prophet counted them both as brothers without distinguishing the one from the other. Principles of Islamic Jurisprudence ~ Kamali 170 [59. Amidi, Ihkam, I, 198; [61. Abu Zahrah, Usul, p.165.] The ijma' that is recorded on these issues became standard practice during the period of the first four caliphs, who often consulted the Companions and announced their collective decisions in public. Doctrine, p.164.] `Abd al-Wahhab Khallaf is of the view that an ijma` in accordance with its classical definition is not feasible in modern times. Khallaf adds that it is unlikely that ijma` could be effectively utilised if it is left to Muslim individuals and communities without there being a measure of government intervention. But ijma' could be feasible if it were to be facilitated by the ruling authorities. The government in every Muslim country could, for example, specify certain conditions for attainment to the rank of mujtahid, and make this contingent upon obtaining a recognised certificate. This world enable every government to identify the mujtahidun and to verify their views when the occasion so required When the views of all the mujtahidun throughout the Islamic lands concur upon a ruling concerning an issue, this becomes ijma`, and the ruling so arrived at becomes a binding hukm of the Shari'ah upon all the Muslims of the world. [63. Khallaf, `Ilm, pp. 49-50.] The question is once again asked whethe...
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