Principles of Islamic Jurisprudence by MH kamali

Requirements of ijma see khallaf ilm p45ff shawkani

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Unformatted text preview: even on the part of a small minority, precludes the possibility of ijma`. If, for example, the mujtahidun of Mecca and Madinah, or those of Iraq, or the mujtahidun of the family of the Prophet, or the Sunni ulema without the agreement of their Shi'i counterparts agree upon a ruling, no ijma' will materialise. The majority of ulema maintain that lay opinion is not taken into account: in every field of learning, only the opinion of the learned is relevant to ijma`. Al-Amidi, however, prefers the minority view, attributed to Abu Bakr al-Baqillani and others, to the effect that ijma' includes the agreement of both the laymen and the mujtahidun, the reason being that 'ismah, which is the doctrinal basis of ijma `, is a grace of God bestowed on the whole of the community. It would therefore be improper to turn the property of the entire community into a privilege of the mujtahidun. The majority view is, however, based on the analysis that the mujtahidun, in their capacity as the constituents of ijma`, merely represent the community, and therefore no change is proposed in the original locus of 'ismah. [12. Amidi, Ihkam, I, 226. Bazdawi, however, distinguishes matters which do not require speed knowledge from other matters, and suggests that no discrimination should be made between the layman and the jurists regarding the essentials of the faith. Ijma` is thus confined to the mujtahidun only in regard to matters which require expert knowledge. See for details, Bazdawi, Usul, III, 239.] 4. 5. The agreement of the mujtahidun must be demonstrated by their expressed opinion on a particular issue. This may be verbal or in writing, such as by giving a fatwa in either of these forms, or it may be actual, when, for example, a judge adjudicates the issue in question; or it Principles of Islamic Jurisprudence ~ Kamali 159 may be that every mujtahid expresses an opinion, and after gathering their views, they are found to be in agreement. Similarly the mujtahidun may give their views collectively when, for example, the mujtahidun of the Muslim world assemble at the time an issue is encountered and reach a consensus over its ruling. 6. 7. As a corollary of the second condition above, ijma' consists of the agreement of all the 8. mujtahidun, and not a mere majority among them. For so long as a dissenting opinion exists, there is the possibility that one side is in error, and no ijma' can be envisaged in that situation, for ijma' is a decisive proof, which must be founded on certainty. However, according to Ibn Jarir al-Tabari, Abu Bakr al-Razi, one of the two views of Ahmad Ibn Hanbal and Shah Wali Allah, ijma' may be concluded by a majority opinion. But al-Asmidi prefers the majority view on this point, which requires the participation of all mujtahidun. [13. Amidi, Ihkam, I, 235.] In regard to the rules of fiqh, it is the ijma' of the fuqaha alone which is taken into account. Irshad, p.71.] The question naturally arises whether fuqaha belonging to certain factions like the Khawarij, the Shi'ah, or those who might have been charged wit...
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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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