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Books > Language and Literature > Islam > The Doctrine of Ijma in Islam (A Study of The Juridical Principle of Consensus)
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The Doctrine of Ijma in Islam (A Study of The Juridical Principle of Consensus)
The Doctrine of Ijma in Islam (A Study of The Juridical Principle of Consensus)
Description
About the book

Ijma’ (consensus) is one of the four basic principles of Islamic Jurisprudence. It has played a vital social and cultural role in the integration of the Muslim community and in the formation of institutions. Besides its legal and cultural manifestations, this doctrine occupies a fundamental position in the development of Islamic thought itself. The author has critically studied this doctrine from various angles. The book provides a deep understanding and clear analysis of a difficult problem.

The first three chapters area introductory studying the social and political role of Ijma’ and its authority. The following chapters present a detailed analysis of its classical theory, its definition, and competence, period, jurisdiction, Subject-matter and other relevant questions. The last two chapters deal with its comparative study and with the emerging trends in Ijma.

 

Preface

Recent researches in Islamic law and jurisprudence have opened up new horizons and, therefore, much work can be done in this field. One feels that since the formation of the orthodox schools of law there had been a great development in legal theory, doctrine and norm. Most of these doctrines and schools have been obviously influenced by the historical process. And this is natural. No law in any society, even in a religious one, is ever stagment. It develops with the development of society. Islamic law, although authoritative, is not rigid by nature. It does not, of course, change very rapidly. Its development is very slow and imperceptible. To reconstruct a society in the context of changing conditions it is essential that its law should be constantly revised by means of fresh interpretations. A vigorous search, deep and extensive study, and re-examination of the legal materiel would be conductive to the formulation of the guidelines for further development.

To acquaint oneself with the origins of Islamic law one must go back to its early legal manuals. The early phase has been surveyed to some extent; there, however, remains much work to-be-done. The classical period remained almost unexplored, although it is rich in legal literature. The various aspects of legal theory, important legal doctrine, legal maxims, legal devices, a comparative study of the principles of the four orthodox schools, a comparison between the Sunni and the Shi’I Law, and a study of classical legal thought and philosophy may constitute some important topics of future research. The study of Law in different modern Muslim countries with their changing societies is also a subject of inquiry.

In the field of Islamic jurisprudence a good deal of work has to be done. Some doctoral dissertations produced in recent decades are a welcome contribution to the subject. Dr. M.Z. Madina’s unpublished thesis on the classical doctrine of consensus, submitted to the University of Chicago in 1957, is a fine piece of research. The Islamic Research Institute has a master plan aiming at producing scholarly works on various topics of Islamic studies. The present work is a part of this programme.

The work has been prepared with the materials available in the library of the institute. I also benefited from the libraries at Lahore and Karachi during my short stay there. I could not refer much to the periodicals for want of their back issues in the library.

I am deeply indebted to Dr. Rashid Ahmad jullundhri, the present Director of the Institute, for taking keen interest in the book and expediting its publication. I owe profound thanks to Professor mazheruddin Siddiqi, who guided me on some difficult problems and edited the manuscript. I am also grateful to all my colleagues for their assistance to me in the preparation of this work.

 

Introduction

Islamic jurisprudence is originally based on the Qur’an, the Sunnah, Ijma (consensus), and qiyas (analogy). These are the basic sources of law, apparently autonomous and separated from each other. The main sources are the Qur’an and the Sunnah: Ijma and qiyas are, in fact, subsidiary principles. They are generally applied when the original sources are silent on a certain question. These sources do not form watertight compartment, as the tradition shows. They are closely interrelated and carry the same spirit of revelation: the Qur’an is the word of God; the Sunnah is its commentary, explanation, and its application in practice, though sometimes it carries only the spirit and import of the Qur’anic teaching; Ijma is based on evidence derived from either of them; qiyas requires an original basis. Hence Islamic law is described as divine law.

Islamic law portrays the élan of the Qur’anic prescriptions through a process of reasoning and individual interpretation. Viewed from this standpoint, the whole body of traditional law is an outcome of exercise of personal opinion and individual reasoning. In this sense the phenomenon becomes subjective; and the four sources may better be called bases of law, as personal opinion and approach are involved in the process. But this product of human mind has been granted sancity by means of an infallible Ijma.

So much about the four principles. Let us discuss the significance of Ijma. This important doctrine played a vital role in the integration of the Muslim Community. In its early phase it manifested itself as a general average opinion, a common feeling of the community, and as binding force of the body of law against unsuccessful and stray opinions. In the classical period it developed with its complex theory and ramifications. It became a decisive authority in religious affairs. All religious doctrines were standardized through Ijma. Its rejection was considered heresy, indeed sometimes tantamount to unbelief. On account of its loose machinery it can hardly compared with the institution of the church. Nevertheless, the classical theory treats it as carrying the same force and spirit. Ultimately it became the hallmark of orthodoxy, i.e. Sunnism.

Ijma in its early stages was parochial, i.e. the Ijma of Medina, Kufa, Basra, and Syria. Al-shafi’I almost rejected the Ijma of the scholars because of its parochial nature and because it involved personal opinion. He recognized only the Ijma of the community on the essentials of religion. He substantiated his standpoint on the basis of some traditions that were adopted later by the jurists. With the development of its theory in the medieval period, there appeared three types of attitude, viz. that which upheld the classical theory in to; that which partially recognized it with reservations; and that which rejected it outright. Orthodoxy could hardly convince it’s because of the divergence of opinion on many points in the theory itself.

In this study, our inquiry begins with the post-Shafi’I period. The early period has been explored, of course not finally, by Professor Schacht in “The origins of Muhammadan Jurisprudence” and by me in my earlier work. Hence questions of early concept and development of Ijma, its position in the legal schools, its early usage, and al-Shafi’I treatment of it have not been dealt with in greater detail. The classical theory of Ijma largely differs from its early concept and usage. One can hardly find its definition in the early legal texts, although the term has been frequently used there.

The first three chapters of this treatise are introductory studying the social and political role of Ijma and its authority. The following chapters present detailed analysis of its classical theory, i.e. its definition, competence, period, jurisdiction, subject matter and other relevant questions. The point of view held by the opponents of Ijma has been discussed in a separate chapter. The last two chapters deal with its comparative study and with the emerging trends in Ijma.

The present study poses some important questions for further inquiry of this doctrine in the context of the present-day situation. How this principle should be applied in the changing Muslim society of our day is a big question to answer.

 

Contents

 

Preface i
Introduction v
Chapter I  
Ijma, An Integrating Force in the Muslim Community 1
Chapter II  
The Political Role of Ijma 21
Chapter III  
The Argument fro the Authority of Ijma' 36
Chapter IV  
The Classical Definition of Ijma: The Nature of Consensus 72
Chapter V  
Competence for Ijma' 83
Chapter VI  
Period of Time for Ijma 93
Chapter VII  
Subject Matter of Ijma' 103
Chapter VIII  
Ijma' by Silence 111
Chapter IX  
The Evidence of Ijma' 120
Chapter X  
The Condition of Time in Ijma' 135
Chapter XI  
The Value of Ijma' and the problem of its Abrogation 148
Chapter XII  
Divergence in the Theory of Ijma 164
Chapter XIII  
A Comparative Study of Ijma' Sangha, Sanhedrin and Church 197
Chapter XIV  
Modern Trends in Ijma' 226
conclusion 259
Bibliography 262
Index 269

Sample Pages

















The Doctrine of Ijma in Islam (A Study of The Juridical Principle of Consensus)

Item Code:
NAI210
Cover:
Hardcover
Edition:
2009
Publisher:
ISBN:
8171511430
Language:
English
Size:
9.0 Inch x 5.5 Inch
Pages:
280
Other Details:
Weight of the Book: 495 gms
Price:
$25.00   Shipping Free
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About the book

Ijma’ (consensus) is one of the four basic principles of Islamic Jurisprudence. It has played a vital social and cultural role in the integration of the Muslim community and in the formation of institutions. Besides its legal and cultural manifestations, this doctrine occupies a fundamental position in the development of Islamic thought itself. The author has critically studied this doctrine from various angles. The book provides a deep understanding and clear analysis of a difficult problem.

The first three chapters area introductory studying the social and political role of Ijma’ and its authority. The following chapters present a detailed analysis of its classical theory, its definition, and competence, period, jurisdiction, Subject-matter and other relevant questions. The last two chapters deal with its comparative study and with the emerging trends in Ijma.

 

Preface

Recent researches in Islamic law and jurisprudence have opened up new horizons and, therefore, much work can be done in this field. One feels that since the formation of the orthodox schools of law there had been a great development in legal theory, doctrine and norm. Most of these doctrines and schools have been obviously influenced by the historical process. And this is natural. No law in any society, even in a religious one, is ever stagment. It develops with the development of society. Islamic law, although authoritative, is not rigid by nature. It does not, of course, change very rapidly. Its development is very slow and imperceptible. To reconstruct a society in the context of changing conditions it is essential that its law should be constantly revised by means of fresh interpretations. A vigorous search, deep and extensive study, and re-examination of the legal materiel would be conductive to the formulation of the guidelines for further development.

To acquaint oneself with the origins of Islamic law one must go back to its early legal manuals. The early phase has been surveyed to some extent; there, however, remains much work to-be-done. The classical period remained almost unexplored, although it is rich in legal literature. The various aspects of legal theory, important legal doctrine, legal maxims, legal devices, a comparative study of the principles of the four orthodox schools, a comparison between the Sunni and the Shi’I Law, and a study of classical legal thought and philosophy may constitute some important topics of future research. The study of Law in different modern Muslim countries with their changing societies is also a subject of inquiry.

In the field of Islamic jurisprudence a good deal of work has to be done. Some doctoral dissertations produced in recent decades are a welcome contribution to the subject. Dr. M.Z. Madina’s unpublished thesis on the classical doctrine of consensus, submitted to the University of Chicago in 1957, is a fine piece of research. The Islamic Research Institute has a master plan aiming at producing scholarly works on various topics of Islamic studies. The present work is a part of this programme.

The work has been prepared with the materials available in the library of the institute. I also benefited from the libraries at Lahore and Karachi during my short stay there. I could not refer much to the periodicals for want of their back issues in the library.

I am deeply indebted to Dr. Rashid Ahmad jullundhri, the present Director of the Institute, for taking keen interest in the book and expediting its publication. I owe profound thanks to Professor mazheruddin Siddiqi, who guided me on some difficult problems and edited the manuscript. I am also grateful to all my colleagues for their assistance to me in the preparation of this work.

 

Introduction

Islamic jurisprudence is originally based on the Qur’an, the Sunnah, Ijma (consensus), and qiyas (analogy). These are the basic sources of law, apparently autonomous and separated from each other. The main sources are the Qur’an and the Sunnah: Ijma and qiyas are, in fact, subsidiary principles. They are generally applied when the original sources are silent on a certain question. These sources do not form watertight compartment, as the tradition shows. They are closely interrelated and carry the same spirit of revelation: the Qur’an is the word of God; the Sunnah is its commentary, explanation, and its application in practice, though sometimes it carries only the spirit and import of the Qur’anic teaching; Ijma is based on evidence derived from either of them; qiyas requires an original basis. Hence Islamic law is described as divine law.

Islamic law portrays the élan of the Qur’anic prescriptions through a process of reasoning and individual interpretation. Viewed from this standpoint, the whole body of traditional law is an outcome of exercise of personal opinion and individual reasoning. In this sense the phenomenon becomes subjective; and the four sources may better be called bases of law, as personal opinion and approach are involved in the process. But this product of human mind has been granted sancity by means of an infallible Ijma.

So much about the four principles. Let us discuss the significance of Ijma. This important doctrine played a vital role in the integration of the Muslim Community. In its early phase it manifested itself as a general average opinion, a common feeling of the community, and as binding force of the body of law against unsuccessful and stray opinions. In the classical period it developed with its complex theory and ramifications. It became a decisive authority in religious affairs. All religious doctrines were standardized through Ijma. Its rejection was considered heresy, indeed sometimes tantamount to unbelief. On account of its loose machinery it can hardly compared with the institution of the church. Nevertheless, the classical theory treats it as carrying the same force and spirit. Ultimately it became the hallmark of orthodoxy, i.e. Sunnism.

Ijma in its early stages was parochial, i.e. the Ijma of Medina, Kufa, Basra, and Syria. Al-shafi’I almost rejected the Ijma of the scholars because of its parochial nature and because it involved personal opinion. He recognized only the Ijma of the community on the essentials of religion. He substantiated his standpoint on the basis of some traditions that were adopted later by the jurists. With the development of its theory in the medieval period, there appeared three types of attitude, viz. that which upheld the classical theory in to; that which partially recognized it with reservations; and that which rejected it outright. Orthodoxy could hardly convince it’s because of the divergence of opinion on many points in the theory itself.

In this study, our inquiry begins with the post-Shafi’I period. The early period has been explored, of course not finally, by Professor Schacht in “The origins of Muhammadan Jurisprudence” and by me in my earlier work. Hence questions of early concept and development of Ijma, its position in the legal schools, its early usage, and al-Shafi’I treatment of it have not been dealt with in greater detail. The classical theory of Ijma largely differs from its early concept and usage. One can hardly find its definition in the early legal texts, although the term has been frequently used there.

The first three chapters of this treatise are introductory studying the social and political role of Ijma and its authority. The following chapters present detailed analysis of its classical theory, i.e. its definition, competence, period, jurisdiction, subject matter and other relevant questions. The point of view held by the opponents of Ijma has been discussed in a separate chapter. The last two chapters deal with its comparative study and with the emerging trends in Ijma.

The present study poses some important questions for further inquiry of this doctrine in the context of the present-day situation. How this principle should be applied in the changing Muslim society of our day is a big question to answer.

 

Contents

 

Preface i
Introduction v
Chapter I  
Ijma, An Integrating Force in the Muslim Community 1
Chapter II  
The Political Role of Ijma 21
Chapter III  
The Argument fro the Authority of Ijma' 36
Chapter IV  
The Classical Definition of Ijma: The Nature of Consensus 72
Chapter V  
Competence for Ijma' 83
Chapter VI  
Period of Time for Ijma 93
Chapter VII  
Subject Matter of Ijma' 103
Chapter VIII  
Ijma' by Silence 111
Chapter IX  
The Evidence of Ijma' 120
Chapter X  
The Condition of Time in Ijma' 135
Chapter XI  
The Value of Ijma' and the problem of its Abrogation 148
Chapter XII  
Divergence in the Theory of Ijma 164
Chapter XIII  
A Comparative Study of Ijma' Sangha, Sanhedrin and Church 197
Chapter XIV  
Modern Trends in Ijma' 226
conclusion 259
Bibliography 262
Index 269

Sample Pages

















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