Principles of Islamic Jurisprudence by MH kamali

Ijma provides islam with a potential for freedom of

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Unformatted text preview: tive rules do not carry a binding force, but once an ijma `is held in their favour, they become definite and binding. Instances can be cited, for example, where the Companions have, by their ijma', upheld the ruling of a solitary Hadith. In such cases, the ruling in question is elevated into a binding rule of law. For example, the prohibition concerning unlawful conjunction, that is, simultaneous marriage to the close relatives of one's wife, is a definitive ruling which is based on ijma `, despite the fact that the basis of this ijma` is a solitary Hadith - namely the Hadith that prohibits simultaneous marriage to the maternal or paternal aunt of one's wife. Similarly, the grandmother is entitled to a share in inheritance, and this is a qat'i ruling of ijma` which is based on a solitary Hadith. The Hadith in question is reported by al-Mughirah b. Shu'bah to the effect that the Prophet assigned to the grandmother the portion of one-sixth. Ijma` has also played a role in regard to ahadith that were not equally known to all the mujtahidun especially driving the period preceding the collection and compilation of Hadith. It was through ijma` that some scholars were informed of the existence of certain ahadith. Zahrah, Usul, pp.159-161.] [9. Muslim, Sahih, p.212, Hadith no. 817; Ibn Majah, Sunan, II, 910, Hadith no. 2724; Abu And lastly, ijma` represents authority. Once an ijma is established it tends to become an authority in its own right, and its roots in the primary sources are gradually weakened or even lost. It then becomes common practice to quote the law without a reference to the relevant sources. It is partly due to the significance of ijma` that the incentive to quote the authority tends to weaken. This is according to Shah Wali Allah, one of the reasons which induced the jurists to recognize ijma` as the third source of the Shari'ah. [10. Shah Wali Allah, Qurrah, p.40.] Essential Requirements (Arkan) of Ijma` Principles of Islamic Jurisprudence ~ Kamali 158 Whenever an issue arises and attracts the attention of the mujtahidun of the Muslim community at the time of its incidence, and they reach a unanimous agreement on its ruling, it is implied that the ruling so agreed upon is the correct and authoritative ruling of the Shari'ah, provided that the following conditions are fulfilled: 1. That there are a number of mujtahidun available at the time when the issue is encountered. For consensus can never exist unless there is a plurality of concurrent opinion. Should there be a situation where a plurality of mujtahidun could not be obtained, or when there is only a single mujtahid in the community, no ijma' could be expected to materialise. requirements of ijma' see Khallaf, `Ilm, p.45ff; Shawkani, Irshad, p.71ff.] [11. For details on the essential 2. 3. According to the majority of ulema, unanimity is a prerequisite of ijma`. All the mujtahidun, regardless of their locality, race, colour and school or following, must reach a consensus on a juridical opinion at the time an issue arises. The presence of a dissenting view,...
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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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