Principles of Islamic Jurisprudence by MH kamali

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Unformatted text preview: r the classical definition of ijma' has ever been fulfilled at any period following the demise of the Prophet. Khallaf answers this question in the negative, although [57. [62. Hasan, some ulema maintain that the ijma ' of the Companions did fulfill these requirements. Khallaf observes that anyone who scrutinises events during the period of the companions will note that their ijma' consisted of the agreement of the learned among them who were present at the time when an issue was deliberated, and the ruling which followed was a collective decision of the shura. When the caliph Abu Bakr could not find the necessary guidance for settling a dispute in the Qur'an or the Sunnah, he would convene the community leaders for consultation, and if they agreed on an opinion, he would act upon it. The community leaders so convened did not include everyone; many were, in fact, on duty in Mecca, Syria, the Yemen, etc. There is nothing in the reports to suggest that Abu Bakr postponed the settlement of disputes until a time when all the mujtahidun of the age in different cities reached an agreement. He would instead act on the collective decision of those who were present. The practice of 'Umar b. alKhattab corresponded with that of his predecessor, and this is what the fuqaha have referred to as ijma`. This form of ijma' was only practiced during the period of the Companions, and intermittently under the Umayyads in al-Andalus when in the second Islamic century they set up a council of ulema for consultation in legislative affairs (tashri' ). References are found, in the works of some ulema of the Andalus, to the effect that so-and-so was the `learned member' of the council. With the exception of these periods in the history of Islam, no collective ijma' is known to have taken place on any medical matter. The mujtahidun were engaged in their juridical activities as individuals, whose views either agreed or disagreed with those of the other mujtahidun. The most that a particular mujtahid was able to say on any particular matter was that `no disagreement is known to exist on the hukm of this or that incident'. Types of Ijma ` [64. Khallaf, `Ilm, p.50.] From the viewpoint of the manner of its occurrence, ijma` is divided into two types: a. Explicit ijma` (al-ijma' al-sarih) in which every mujtahid expresses his opinion either verbally or by an action; and b. c. Tacit ijma`(al-ijma `al-sukuti) whereby some of the mujtahidun of a particular age give an expressed opinion concerning an incident while the rest remain silent. d. According to the jumhur ulema, explicit ijma' is definitive and binding. Tacit ijma' is a presumptive ijma' which only creates a probability (zann) but does not preclude the possibility of fresh ijtihad on the Principles of Islamic Jurisprudence ~ Kamali 171 same issue. Since tacit ijma` does not imply the definite agreement of all its participants, the ulema have differed over its authority as a proof. The majority of ulema, including al-Shafi'i, have held that it is not a proof and that it...
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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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