Chapter XXVIII - Ijma’ - The Third
Foundation of Islamic Laws
Ijma’ literally means “unanimity” of opinion on a certain solution. The sunni Muslims style themselves ahlus-Sunna wal-jamâ’, i.e. the people of tradition and congregation. In Muslim theology, the term ijmâ’expresses the unanimous consent of the learned doctors of theology who are termed mujtahids or those who exert themselves to the utmost. A mujtahid is Muslim divine of the highest degree of learning. The necessary conditions for a mujtahid of the first degree are essentially three: a comprehensive knowledge of the Koran in its different aspect; a knowledge of the Sunna with its lines of transmission, text and varieties of significance; and a knowledge of the different aspects of qiyâa () or analogy: Added to these fundamentals is that a mujtahid must be qualified in the science of osûl, i.e. the essential principles of the Muslim law, based on the Koran, the tradition, consensus of opinion and analogy.
Hence a mujtahid is a Muslim divine of the highest degree of learning. This title is usually given by the Muslim rulers to those distinguished doctors of divinity among the community, such as the grand rector of Al-Azhar University in Egypt and to the Members of the Body of Grand Jurists forming the Legislative Council of the said University and to the grand qâdis (judges); also to grand muftis or Muslim counsellors in the different Muslim states.
Ijma’ being the exercise of judgment and reason in theological as well as legal matters, plays a very important part in the establishment of the religion of Islam. The value of reason is expressly recognized in the Holy Koran. Although the Koran recognizes revelation as a source of knowledge higher than reason, it admits at the same time that the truth of the principles established by revelation may be judged by reason, and hence it repeatedly appeals to reason and common sense and denounces those who do not use their reasoning faculties: it is full of exhortations like the following: “Do you not reflect”? () “Do you not understand”? () “Have you no sense”? () “There are signs in this for a people who reflect”. “There are signs in this for a people who understand’().
Those who do not use their reasoning faculty are condemned in various verses of the Koran. On the other hand, it praises those who do it (). The Koran also recognizes the necessity of the exercise of judgment in order to arrive at a decision: “And when there comes to them news of security of fear, they spread it abroad; and if they had referred it to the Apostle and to those in authority (the jurists) among them, those among them who can search out the knowledge of it would have known its true purport” (). The original Arabic word in the verse for “search out” read “yastanbitûna” from “istinbât”, which signifies the searching out of the hidden meaning by the use of judgment and reason. The verse use recognizes the principle of the exercise of the judgment, which is the same as ijtigâd and is also the same as istikhrâj or deduction by analogy (), and though the occasion on which it was revealed was a particular one, the principle recognized is considered by all jurists and learned scholars a general principle.
The Prophet allowed the exercise of judgment in religious matters, where there is no express direction in the Holy Koran or the Sunna ()
Establishment of Ijtihad
The exercise of judgment to meet the new circumstances had begun as already shown in the Prophet’s lifetime, since it was impossible to refer every case to him. After the Prophet’s death, the principle of ijthâdobtained a wider prevalence, and as new areas of population were added to the material and spiritual realm of Islam, the need of resorting to ijtihâd became greater. During the reign of Abû-Bakr, when a case came before him, he used to consult the Book of Allah (the Koran); if he found anything in it by which he could decide, he did so; if he did not find it in the Book, and he knew of a Sunna of the Messenger of Allah, he decided according to it; and if he was unable to find anything there, he used to question the Muslims around him If they knew of any decision of the Prophet in a matter of the kind, and every one them stated what he knew from the Prophet, and Abû-Bakr would say ‘praise be to Allah who had kept among us those who remembered what the Prophet had said’ ; but if he was unable to find anything in the Sunna of the Prophet, he gathered together the heads of the companions and consulted them, ands if they agreed upon one opinion (by a majority) he decided accordingly.().
The above illustration represents the principle of ijmâ’ or consensus of opinion as a source of the Islamic Law.
The same rule was followed by ‘Omar, the second Khalifa, who resorted to ijithâd very freely, but took care always to gather the most learned companions and consult with them. When there was a difference of opinion, that of the majority was made the basis of decision.
Besides the Khalifas among whom in the foremost was ‘Ali, cousin of the Prophet, there were great individual teachers, such as lady ‘A’isha–the Prophet’s widow, Ibn ‘Abbâs, Ibn ‘Omar, and other great mujtahidsof the day, whose opinion was highly revered. Decisions were given according to their own judgment and laws promulgated subject only to the one condition that they were neither contrary to the Holy Koran nor to the Sunna of the Prophet. And decisions of those earlier jurists were followed by the later jurists.
The Four Great Divine Doctors
In the second century of Hijra arose the great four doctors of jurisprudence who codified the Islamic Law according to the needs of their time.
The first of these was Dr. Imâm Abû-Hanîfa Al Nu’mân ibn Thâbit, born at Basra (80 A.H.) (A.D. 699) – died A.D. 767 – His centre of activity was at Kufa. The basis of his analogical reasoning, known by qiyâs(analogy) was the Holy Koran, and he accepted hâdîth only when he was fully satisfied as to its authenticity. The great collector of hâdîth had not yet commenced their work of collection, and Kûfa itself was not a great centre of the branch of learning. It was Imâm Abû-Hanîfa who first directed attention to the great value of qiyâs or analogical reasoning in legislation which was held by Muslims to be fourth foundation of the Islamic jurisprudence after the source of ijmâ’. The principle of qiyâs will be dealt with later. Imâm Abâ Hanîfa had two renowned disciples, Dr. Imâm Muhammad and Dr. Imâm Abû-Yûsuf, and it is mostly their view of the great master’s teaching that now form the basis of the Hanafi School system.
Next comes Dr. Imâm Mâlik ibn Anas, the second great Divine. He was born at Medîna in the year 93 A.H. (A.D. 713), and worked and died there at the age of 82. He limited himself almost entirely to the hadîthwhich he found and collected at Medina, relating more especially to the practice which prevailed there, and his system of jurisprudence is based entirely on the traditions and practices of the people of Medina. His book, known as Muwatta, is the first collection of hadith and one of the most authoritative books of tradition and Sunna.
The third Divine Dr. Imâm Muhammad ibn Idris Alshâf’I was born in Palestine in the year 150 A.H. (A.D. 767). He passed his youth at Mecca but he worked for the most part in Egypt, where he died in 204 A.H. In his day, he was unrivalled for his knowledge of the Holy Koran, and took immense pains in studying the Sunna, travelling from one place to another in search of information. His school was based chiefly on Sunna. Over the Mâliki system, which is also based on Sunna, the Shâf’i system has the advantage that the hadîth made use of by Imâm Shâf’i was more extensive, and was collected from different centres, while Imâm Mâlik contented himself only with what he found at Medina.
Imâm Ahmad Ibn Hanbal
Last of the four great Imâm was Dr. Ahmad ibn Hanbal who was born at Baghdâd in the year 164 A.H. and died there in 241 A.H. he too made a very extensive study of hadîth. His famous work on the subject is known as Musnad of Ahmad ibn Hanbal, containing thousands of hadîths. This monumental compilation is based on the material collected by the Imâm himself. His collection of hadîths is not arranged according to subject matter but under the name of the companion to whom a hadîth is ultimately traced.
While the system of Abû-Hanîfa applied reasoning very freely and sought to deduce all questions from the Holy Koran by the help of reason, the system of Ibn Hanbal is distinguished by the fact that it makes reserved use of reason and judgment.
Different Methods Forming New Laws
The four Imâms above mentioned, who are accepted by the entire sunni world of Islam, are thus agreed in giving to ijtihâd a very important place in legislation. Ijmâ’ and ijtihâd are thus looked upon as two more sources of the Islamic Law along with the Holy Koran and the Sunna of the Prophet, though the latter two are regarded as ÇáÇÏáÉ ÇáÞØÚíÉ (al-adilla-qat’iya or absolute arguments or authorities), the former two sources being called ÇáÇÏáÉ ÇáÇÌÊãÇÚíÉ (al-addillal-ijtihâdiya or arguments arrived at by exertion).
The sphere of ijtihâd is a very wide one, since it seek to fulfill all the requirements of the Muslim community which are not met with expressly in the Holy Koran and the hadîth. The great mujtahed of Islam have endeavoured to meet these demands by various methods, technically known as “ÞíÇÓ” (qiyâs or analogical reasoning), “ÇÓÊÍÓÇä" (istishsâs, i.e. equity) “ "ÇÓÊÕáÇÍ” (istislâh, i.e. public good), and “ÇÓÊÏáÇá” (istidlâl, i.e. inference). A brief description of these methods may be given to show how new are evolved by adopting them.
)) cf. “Kashful-Asrâr”, by ‘Abdul-Aziz Al-Bukhâri.
) ) VII – 179.
) ) VIII - 22.
) ) XXV – 44.
) ) III – 189, 190
) ) Ibid IV – 83.
) ) Vide “Tâjul-‘Aruâs”, Arabic Lexicon by Imam Murtada Hussini.
) ) When asked by the Prophet how he would judge cases if the Sunna, Mu’âz who was to be appointed governor of Yemen he did not find directions either in the Book of God or in Sunna, replied – to the satisfaction and consent of the Prophet – “I would then exercise my own judgment.”
) ) Vide “Tarikhul – Khulafa” (History of the Khalifas), by Iman Jalalud-Din Al-Sayûti, Chapter relating to Abu-Bskr (see his knowledge).