Ijma & Qayas

Ijma & QayasTariq Saeed Chaudhry Ijma -DefinitionLiterally means agreement on a matter

In its technical sense, it means the consensus of the independent jurists from the Ummah of the Prophet Muhammad (SAW) after his death

Example : Jurists have reached a consensus (Ijma) that the selling of goods by an party who doesnt own the goods and without the approval of the goods owner is void

Ijma -DefinitionThe ijma' , or consensus amongst Muslim jurists on a particular legal issue.

Ijma` is defined as the unanimous agreement of the mujtahidun, of the Muslim community of any period following the demise of the Prophet Muhammad (P.B.U.H) on any matter.

Ijma -DefinitionIjma' plays a crucial role in the development of Shari'ah. The existing body of fiqh is the product of a long process of ijtihad and ijma

Since ijma` reflects the natural evolution and acceptance of ideas in the life of the community, the basic notion of ijma' can never be expected to discontinueIjma in QuranMuslim jurists provide many verses of the Qur'an that legitimize ijma' as a source of legislation.In the Qur'an the phrase fajma'u amrakum which occurs in sura Yunus (10:71) means 'determine your plan'. Similarly fajma'u kaydakum in sura Taha (20:64), where the Prophet Noah addresses his estranged followers, means 'determine your trick'.

Ijma in QuranThe one ayah which is most frequently quoted in support of ijma' occurs in sura al-Nisa' which is as follows:And anyone who splits off from the Messenger after the guidance has become clear to him and follows a way other than that of the believers, We shall leave him in the path he has chosen, and land him in Hell. What an evil refuge! (Qauran 4:115)Ijma in HadithThe Hadith which is most frequently quoted in support of ijma' reads:

My community shall never agree on an error. Ibn Majah, Sunan, II, 1303. Hadith no. 3950.

Ijma the usage Ijma' ensures the correct interpretation of the Qur'an, the faithful understanding and transmission of the Sunnah, and the legitimate use of ijtihad.The question as to whether the law, as contained in the divine sources, has been properly interpreted is always open to a measure of uncertainty and doubt, especially in regard to the deduction of new rules by way of analogy and ijtihad. Only ijma' can put an end to doubt, and when it throws its weight behind a ruling, this becomes decisive and infallibleEssential Requirements (Arkan) of Ijma`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:

That there are a number of mujtahidun available at the time when the issue is encountered.

Essential Requirements (Arkan) of Ijma`According to the majority of ulema, unanimity is a prerequisite of ijma`. All the mujtahidun, regardless of their locality, race, color and school or following, must reach a consensus on a juridical opinion at the time an issue arisesThe 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 actualExamples of IjmaThree talaq at one sitting is valid"The occurrence of three Talaaqs is the mazhab of the Jumhoor (majority) and on this is ijma of the ummat and whosoever opposes this will not be considered in any way. Sharh Zarqani, Vol. 3, p. 167 alislam.co.za.

Interest is prohibited"All the schools of thought of Muslim jurisprudence hold the unanimous view that riba, usury and interest are strictly prohibited."Shahid Hasan Siddiqui. Islamic Banking: Genesis & Rationale, Evaluation & Review, Prospects & Challenges [Karachi: Royal Book Company, 1994], p. 15.

Examples of IjmaIntentionally missed prayer must be made upThere is consensus (ijma) of the scholars whose opinion counts that whoever leaves a prayer intentionally must make it up. Imam Nawawi. al-Majmu Sharh al-Muhadhdhab (3.86), quoted at qa.sunnipath.com.Slaughtering without Allah's name mentioned is not lawfulThe great Hanafi jurist, Allamah Ibn Abidin (Allah have mercy on him) explains the above by stating: Meaning a slaughtered animal will not be lawful to consume (halal) if the name of Allah was intentionally not pronounced whether the slaughterer was a Muslim or from the people of the book (kitabi), because of the (clear) text of the Quran and the consensus (ijma) of all the scholars.

Examples of IjmaThe Isra (mi'raj) was in body and soulThere is scholarly consensus (ijma) that Prophet Muhammad journeyed in body and soul the night of al-Isra' from Masjid al-Haram in Makkah to Masjid al-Aqsain Jerusalem. Moreover, these scholars indicated the person who denies al-Isra' is a blasphemer for belying the explicit text of the Qur'an.

Ijma- Amendment or abrogation (naskh)When ijma` fulfills the foregoing requirements, it becomes binding (wajib) on everyone. Consequently, the mujtahidun of a subsequent age are no longer at liberty to exercise fresh ijtihad over the same issue.For once it is concluded, ijma` is not open to amendment or abrogation (naskh). The rules of naskh are not relevant to ijma` in the sense that ijma` can neither repeal nor be repealedQiyasQiyas (Analogical Deduction) - DefinitionLiterally, qiyas means measuring or ascertaining the length, weight, or quality of something, which is why scales are called miqyas.

Qiyas also means comparison, with a view to suggesting equality or similarity between two things

Qiyas thus suggests an equality or close similarity between two things, one of which is taken as the criterion for evaluating the other.Qiyas (Analogical Deduction) - DefinitionTechnically, qiyas is the extension of a Shari'ah value from an original case, or asl, to a new case, because the latter has the same effective cause as the former. The original case is regulated by a given text, and qiyas seeks to extend the same textual ruling to the new case. [3. Shawkani, Irshad, p. 198.] It is by virtue of the commonality of the effective cause, or 'illah, between the original case and the new case that the application of qiyas is justified.Qiyas (Analogical Deduction) - DefinitionQiyas is the extension of a Shariah ruling from an original case (Asl) to a new case (Far'), because the new case has the same effective cause (Illah) as the original case (Asl)

Original case (Asl) is regulated by a text of Quran or Sunnah and Qiyas seeks to extend the original ruling to the new case (Far).

Reason for QiyasA recourse to analogy is only warranted if the solution of a new case cannot be found in the Qur'an, the Sunnah or a definite ijma.

It would be useless to resort to qiyas if the new case could be resolved under a ruling of the existing law.

It is only in matters which are not covered by the nusus and ijma` that the law may be deduced from any of these sources through the application of analogical reasoning.Essential requirements of QiyasThe essential requirements of qiyas which are indicated in these definitions are as follows:

The original case, or asl, on which a ruling is given in the text and which analogy seeks to extend to a new case.The new case (far`) on which a ruling is wanting.The effective cause ( `illah) which is an attribute (wasf) of the asl and is found to be in common between the original and the new case.The rule (hukm) governing the original case which is to be extended to the new case.Essential requirements of QiyasExample: To illustrate these, we might adduce the example of the Qur'an (al-Ma'idah, 5:90), which explicitly forbids wine drinking.

If this prohibition is to be extended by analogy to narcotic drugs, the four pillars of analogy in this example would be:

Prohibition of wine drinking.Each of the four essentials (arkan) of analogy must, in turn, qualify a number of other conditions which are all designed to ensure propriety and accuracy in the application of qiyas. It is to these which we now turn.Asl (original case) Far' (new case) Illah (cause of ruling) Hukm (ruling) Wine drinking Taking narcotic drugs Intoxicating Effects Prohibition Qiyas - Hanafi School of thought The Hanafi school of thought very strongly supports qiyas.Imam Abu Hanifa, an important practitioner of qiyas, elevated qiyas to a position of great significance in Islamic law. Abu Hanifa extended the rigid principle of basing rulings on the Qur'an and Sunnah to incorporate opinion and exercise of free thought by jurists. In order to respond suitably to emerging problems, he based his judgments, like other jurists, on the explicit meanings of primary texts (the Qur'an and sunnah).Qiyas - Hanafi School of thought But, he also considered the "spirit" of Islamic teachings, as well as the whether the ruling would be in the interest of the objectives of Islam. Such rulings were based on public interest and the welfare of the Muslim community.[20]The knowledge of ours is an opinion, it is the best we have been able to achieve. He who is able to arrive at different conclusions is entitled to his own opinion as we are entitled to our own.Abu Hanifa[20]

Qiyas ShafiI School of thought The Shafi'i school of thought accepts qiyas as a valid source. Imam Shafi'i, however, considered it a weak source, and tried to limit the cases where jurists would need to resort to qiyas. He criticized and rejected analogical deductions that were not firmly rooted in the Qur'an and sunnah. According to Shafi'i, if analogical deductions were not strictly rooted in primary sources, they would have adverse effects. One such consequence could be variety of different rulings in the same subject. Such a situation, he argued, would undermine the predictability and uniformity of a sound legal system.

Qiyas Maliki School of thought Imam Malik accepted qiyas as a valid source of legislation. For him, if a parallel could be established between the effective cause of a law in the primary sources and a new case, then analogical deduction could be viable tool. Malik, however, went beyond his adherence to "strict analogy" and proposed pronouncements on the basis of what jurists considered was "public good".

Types of QiyasQiyas has been further divided into two types:

Obvious analogy' (qiyas jali)

Hidden analogy' (qiyas khafi).Types of QiyasObvious analogy' (qiyas jali) The equation between the asl and far` is obvious and the discrepancy between them is removed by clear evidence. An example of this is the equation the ulema have drawn between the male and the female slave with regard to the rules of manumission. Thus if two person, jointly own a slave and one of them sets the slave free to the extent of his own share, it is the duty of the Imam to pay the other part-owner his share and release the slave.This ruling is explicit regarding the male slave, but by an `obvious analogy' the same rule is applied to the female slave. The discrepancy of gender in this case is of no consequence in regard to their manumission.Types of QiyasHidden analogy' (qiyas khafi).The 'hidden analogy' (qiyas khafi) differs from the 'obvious' variety in that the removal of discrepancy between the asl and the far` is by means of a probability (zann). An example of qiyas khafi is the extension, by the majority of ulema (excepting the Hanafis), of the prescribed penalty of zina to sodomy, despite a measure of discrepancy that is known to exist between the two cases. And finally, the foregoing analysis would suggest that qiyas khafi and qiyas al-adna are substantially concurrent.International authorities governing Islamic FinanceInternational authorities governing Islamic FinanceAAOIFI (1991) : Accounting and Auditing organization for Islamic Financial institutionsBenchmark of Islamic accounting and auditing standards (56 standards)

IFSB (2002) : Islamic financial Services BoardStandard setting body of regulatory and supervisory agencies (complementing BASEL II Capital Accord)

IIFM (2001) : International Islamic Financial MarketDevelopment of Global Islamic capital and money market

International authorities governing Islamic FinanceGCIBFI (2001) : General Council for Islamic Banks and Financial InstitutionsPromotion industry in theory and practice

LMC (2002) : Liquidity Market CouncilCreation of active Islamic inter-bank market

IIRA (2005) : International Islamic Rating AgencyRating of Islamic Financial institutions

JAZAKALLAH KHAIR