Principles of Islamic Jurisprudence by MH kamali

Tacit ijma is a presumptive ijma which only creates a

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Unformatted text preview: does not amount to more than the view of some individual mujtahidun. But the Hanafis have considered tacit ijma` to be a proof provided it is established that the mujtahid who has remained silent had known of the opinion of other mujtahidun but then, having had ample time to investigate and to express an opinion, still chose to remain silent. If it is not known that the silence was due to fear or taqiyyah (hiding one's true opinion), or wariness of inviting disfavour and ridicule, then the silence of a mujtahid on an occasion where he ought to express an opinion when there was nothing to stop him from doing so would be considered tantamount to agreeing with the existing opinion. Khallaf, `Ilm, p. 51; Shawkani, Irshad, p.72.] The proponents of tacit ijma' have further pointed out that explicit agreement or open speech by all the mujtahidun concerning an issue is neither customary nor possible. In every age, it is the usual practice that the leading ulema give an opinion which is often accepted by others. Suppose that the entire ummah gathered in one place and shouted all at once saying that, 'we agree on such-and-such'. Even if this were possible, it would still not impart positive knowledge. For some of them might have remained silent due to fear, uncertainty, or taqiyyah. [66. Shawkani, Irshad, p.72, Abu Zahrah, Usul, p.163.] Further, the Hanafis draw a distinction between the `concession' (rukhsah) and 'strict rule' (azimah), and consider tacit ijma' to be valid only with regard to the former. In order to establish a strict role, ijma` must be definitely stated or expressed by an act. The Hanafis are alone in validating tacit ijma`. The Zahiris refuse it altogether, while some Shafi'is like al-Juwayni, al-Ghazali and al-Amidi allow a with certain reservations. 'It is ijma`, alGhazali tells us, 'provided that the tacit agreement is accompanied by indications of approval on the part of those who are silent.' [67. Ghazali, Mustasfa, I, 121; Encyclopedia of Islam (New Edition) III, 1024.] The majority opinion on this matter is considered to be preferable. For the silence of a mujtahid could be due to a variety of factors, and it would be arbitrary to lump them all together and say that silence definitely indicates consent. But despite the controversy it has aroused, tacit ijma' is by no means an exceptional case. On the contrary, it is suggested that most of what is known by the name of ijma' falls under this category. [68. Khallaf, Ilm, p.51.] The next topic that needs to be taken up in this context is the 'Madinese consensus', or ijma' ahl alMadinah. According to the Maliki ulema, since Madinah was the centre of Islamic teaching, the 'abode of hijrah' (dar al-hijrah) and the place where most of the Companions resided, the consensus of its people is bound to command high authority. Although the majority of ulema have held that the Madinese ijma`is Principles of Islamic Jurisprudence ~ Kamali 172 [65. not a proof on its own, Imam Malik held that it is. There is some di...
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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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