Definition ijma’ is when a group of people

Definition of Ijma’             Ijma’ is literally defined as determination and resolution or agreement upon a matter. For the first definition, the term ijma’ can be seen in Surah Yunus verse 71, “Determine your plan and among partners” which refers to deciding and determining a matter. In a hadith, Prophet Muhammad SAW said “The person who has not resolved to fast prior to dawn has no fast” which conveys the meaning of deciding and resolving. The second definition of ijma’ is when a group of people achieve an agreement upon a certain matter. Technically, ijma’ is defined as the consensus or unanimous agreement of mujtahid from the ummah of Prophet Muhammad SAW, after his demise, in a determined period upon a rule of Islamic law (hukm shar’i). (Nyazee, 2003)Conditions for the validity of Ijma’         According to Nyazee (2003), in order for ijma’ to take place, seven conditions must be met. Majority of the mujtahid imposed these seven conditions while another two conditions are imposed by some of the mujtahid. First, the consensus must take place among mujtahid who have attained the status of ijtihad. A matter that is agreed upon must be based on qualified mujtahid, which exclude the public, layman, the members of modern legislature. However, there is a disagreement concerning to the number of mujtahid agreeing upon a matter. Some said that the number of mujtahid must reach the level necessary for tawatur, while others said that three mujtahid are enough to constitute ijma’. It is clear that ijma’ will not be constituted if there is only a single mujtahid available in a certain period.         Second, the consensus must be unanimous among each of the mujtahid. If there is a minority of mujtahid that disagree upon a hukm shar’i, ijma’ will not be constituted even if there is a majority that agree to it. This is because, there is a possibility that the minority opinion appears to be correct. Third, all the mujtahid participating in ijma’ must be from the ummah of Prophet Muhammad SAW. An agreement which is constituted by mujtahid of another ummah or the nations of earlier prophets will not be considered as ijma’. This is because, only ummah of Prophet Muhammad SAW is protected against error in collective arguments, based on several textual evidences.         Fourth, the consensus must take place after the demise of Prophet Muhammad SAW. An agreement during his lifetime will not be considered as ijma’. This is because, Prophet Muhammad SAW was the source of the rule whenever he agreed with the sahabah on a certain matter, and it is not considered as ijma’. Fifth, the consensus must take place among mujtahid of a single determined period, despite the opposition by jurists of the following and subsequent period before them. This is because, for ijma’ to be valid, it has to depend on unanimous agreement which can only be achieved in a single determined period, like a generation. It is not possible for ijma’ to take place if the opinions of all jurists of all periods are taken into account.         Sixth, the consensus must be upon the hukm shar’i. Any agreement upon general or rational rules like the rules of grammar or the creation of universe are not considered as ijma’. The agreement must be based on hukm shar’i which includes a certain ruling for the issue such as prohibited, permitted, valid or void. Any non-legal matters are excluded from the constitution of ijma’. Seventh, the mujtahid must rely upon a sanad for deriving their opinion. An agreed upon rule must rely upon an evidence from the legal system and not go against the Quran and the sunnah. However, if a sanad can be found in Quran and sunnah, it cannot be constituted as ijma’ because the sanad itself will become the source of law. The rationale of this condition is to make sure that the mujtahid has taken proper ijtihad to arrive at his opinion.         The last two opinions are those which imposed by minority of mujtahid. First, the death of mujtahid who participated in ijma’ is not a condition for the validity of ijma’. According to these mujtahid, ijma’ is valid once agreement is made. Some of the mujtahid believe that it is possible for a mujtahid to change his view and as long as the mujtahid is still alive, the possibility of changing the view does exist. They said that ijma’ cannot be finalized as long as the mujtahid are still alive because the mujtahid could be changing his view while he is alive. Second, ijma’ should be transmitted to the later mujtahid by tawatur. Their argument is that due to ijma’ being a definitive evidence, the mode of transmission should also be definitive. Types of Ijma’ There are two types in which ijma’ can be classified, sarih and sukuti ijma’. Sarih ijma’ also known as explicit ijma or qawli is when all jurist members expresses their legal opinion explicitly and unanimously in relation to a legal issue. For example, they would all gather for a session which then they will present an issue and collectively give a unanimous opinion (Nyazee, 2003). Therefore, sarih ijma’ is the clear consensus on a religious issue in which all the mujtahids of one period converge and explain his view clearly and, at the end, reach a general consensus. There are two instances in which sarih ijma’ may be achieved. In one example, the mujtahids of that particular period gather and inspect the case whereby the ruling has to be determined. If,they reach a unanimous consensus at the end of the ijtihad process, and clearly phrase it, this will then be called sarih ijma’. If for instance the agreement was not unanimous, it will not be considered as sarih’ ijma’. In another example, the mujtahid would explain his view about the issue raised and all other mujtahids would also express their opinions, the result of the discussion or process is also sarih ijma’ (Nyazee, 2003).Sukuti ijma’ also known as tacit ijma occurs when a few mujtahids expresses their opinions on an issue and the other mujtahid present would remain silent of the issue neither agreeing or disagreeing to it when normally they would express their views on it. Tacit can be defined as being understood or implied without being stated. However, there are conditions that must be fulfilled in order for sukuti ijma’ to happen:There must be no external indication that shows a sign of agreement or disagreement during the silent period. If an indication is ever to be expressed that points to an agreement, it would not then be considered as sukuti ijma’ or tacit, but rather sarih ijma’. However, if there is a sign of disagreement, that process would not be considered as ijma’.There should be a substantial given amount of time in which the mujtahid remains silent. However, the duration of the silent period cannot be fixed because formulating an opinion of the issue raised takes time and it varies depending on the mujtahids. The issues discussed must be about something in which ijtihad is allowed. The issues discussed are all in which available sources are zanni or probable. If, for example, the issue brought upon discussion is not where ijtihad is permitted, that is, the controlling evidence is qat’i or definitive or having one meaning, then the silence of the mujtahids cannot be considered as sukuti ijma’ because these issues were not supposed to be discussed amongst the jurists. The Legal Force of Ijma’ as a SourceStrength of explicit ijma’Sarih or explicit ijma is when an opinion that is respected by all jurist within a certain period of time. Each jurists also expresses their opinions clearly. Explicit ijma’ is a definitive source with no doubt. As Muslims must be obedient to the belief that the jurists have decided upon. Non-obedience and belief in ijma’ is contrary and is strictly prohibited in Islam. if an issue is being discussed with the jurists and published about the law of the issue, it is wrong for the issue to be discussed and revised.As long as ijma ‘applies by fulfilling all its requirements, it is propagated as Qath’iy argument against law one of the agreed issues. Thus, ijma ‘becomes the Qath’iy hujjah which must be followed by all the Muslims where it cannot be opposed and canceled. As for those who say that ijma ‘is an argument, they have the arguments that support their views. One of them is:{ ????? ????????? ?????????? ??? ?????? ??? ????????? ???? ????????? ??????????? ?????? ??????? ?????????????? ????????? ??? ????????? ?????????? ????????? ????????? ???????? }And whoever opposes the Messenger after guidance has become clear to him and follows other than the way of the believers – We will give him what he has taken and drive him into Hell, and evil it is as a destination.From the above verse, it can be understood that God s.w.t posed a threat to the attitude of opposing the believer’s path. That is, the walk of the believer is the path of truth that must be followed. And apart from their path they are considered a must-follow path. And apart from their path they are considered a vain path and obliged to abandon. So what they agreed upon, be their path that is sure to be the path of truth and mandatory to follow. And this is what is meant by ijma ‘meaning.In the sunnah there are various atsar that show that Muslims are protected from mistakes if they agree on one of the cases. Among these are the words of the Prophet s.a.w .: “My people disagree on one mistake,” “My people do not agree on one error.” All of these traditions though Aahad, are still mutawatir. That way, its existence ensures that what is agreed upon by Muslims is the truth. Agreement of the people is reflected in the agreement of their mujtahid as they are the ulama while others just follow them. That way, their agreement is a truth that must be followed and should not be challenged.The agreement of the mujtahidin should have relied on the prophecy of syar’iy, because ijtihad does not apply to the basis of lust. But it must be in accordance with certain provisions that keep the role of desires, as we have explained earlier. Thus, if the mujtahids agree on one’s opinion, then we know for sure that they find the prophecy of syar’iy which points to the agreed opinion. Because if the significance of the argument to the problem is not qath’iy, then there is certainly no agreement according to the custom.Strength of Tacit Ijma’         Tacit ijma’ are also known as implicit ijma’, silent ijma and sukuti ijma’. It is when one or more mujtahids remains silent on the argument neither clearly acknowledged nor rejected. In other words, that particular mujtahid are not giving any respond towards the arguments that are being suggested. Not just that, it is also considered as tacit ijma’ when some mujtahids offer their view on the subject or the argument while other mujtahids tend to remain quiet or silent.         First of all, there are different views and opinion among Muslim jurists regarding this issue. Among the mazhab Shafi’e and mazhab Malikis, they agreed that tacit ijma’ is not and could not be taken account as a probable proof. This is because, the action of being silent or non responsive or not giving any responds cannot be assess as a consent to the opinion that has been expressed by the others. In other words, it means that there is no clear statement given or shown from a silent person, as they are not giving any respond towards the argument. Moreover, a person may keep silent due to the respect that they feel towards the opinions or views given by that particular person. Not just that, a person can also remain silent because of fear towards the person who is giving out the opinion at that time. On top of that, that particular person does not have their own views on that argument or they have nothing to say at that moment during the argument. In short, according to mazhab Shafi’e and Malikis, tacit ijma’ cannot be considered as a valid consensus.         Next, the views from mazhab Hanafi and Hanbali. According to Muslim jurists from both of this mazhab, they agreed that tacit ijma’ is as strong as explicit ijma’. Their agreement towards tacit ijma’ is clearly opposing mazhab Shafi’e and Maliki. One of the reason of their agreement is that silent is an evidenced of a sense of consent if there is no other indirect evidence that are telling otherwise. In other words, it means that silence can be considered as agreeing towards a statement if there is no any limitation for the person to express their opinion. According to Imam al-Shafi’e , p.78 as cited in Dr. Farooq stated ” no one at all should give an opinion on a specific matter by merely saying it is permitted or prohibited, unless he is certain of legal knowledge, and this knowledge must be based on the Quran and the Sunna, or derived from ijma’ (consensus) or qiyas (analogy).         Third, there are also a few other views from some Muslim jurists of the Hanafis and Shafie’s saying that tacit ijma’ is not considered as ijma’. However, to them tacit ijma’ is only a possible proof. Moreover, tacit ijma’ does not fulfill the requirements of an arguments by Mujtahids. Therefore, tacit ijma’ is still considered as a proof because that particular opinion or statement has been voice out by some Muslim jurists and no one are against it.         To conclude, majority jurists maintained that this type of ijma’ is a legally binding which means it is a compulsory source or agreement. However, it differed according to its strength.Likelihood of the occurrence of ijma’There is some discrepancy about the likelihood of consensus and its actual occurrence. The mainstream jurists uphold that such a consensus is likely and in fact take place. Al nazzam and his follower maintained that such a consensus is impossible. They claim that:1.      Condition for ijma is the participant of all the mujtahid of a specific period and this entail the identification of all mujtahids as well as the identification of theirs opinion.2.      There is no standard for differentiating a mujtahid from a non mujtahid, and even if there was such a standard, the mujtahid are increase all over the muslim lands and it is impossible to gather them in one place not to discover where they are.3.      A mujtahid has to depend on an evidence in the making of his opinion. Now, such evidence is either definitive or probable. A definitive evidence carry a single meaning and there cannot be two views about it, therefore, there is no purpose that ijma’ can perform in this case. If, on the other hand, the evidence is probable, that is, it has more than one interpretation, getting completely mujtahids to settle upon a single meaning is an impracticality.To these arguments, the majority replied by stating that there has been such agreements in Islamic history. The example they quote connect to to the period of the Companions. For example, the granting of one-sixth share in the inheritance to the grandmother.The complaint of this argument may be that even if this were conceivable during the period of the companions, when all the mujtahids were recognized and easily available, it would be impossible today when the muslim world is constituted a large number of states. Some may respond, however, that the world is once again becoming a smaller place with the rapid advancement in technology, and we cannot call the possibility of the occurrence of ijma as impossible.Analysis of the Arguments1.      The argument that said the guidelines and procedures for assessing a mujtahid are not known is not tolerable because most of the classical and modern books of Usul al-Fiqh mentioned conditions for a mujtahid, which are acknowledged within the community of Muslim jurists. However, some new conditions according to the need of the modern time could be improved2.      A further argument is that mujtahids are spread out in so countless countries entirely over the world that it is impossible for them to be gathered in one place is also not acceptable. This is because currently the transportation system is so refined that it is possible for any number of jurists and 8 mujtahids from all over the world to be assembled in any place of this world within a period of one or two days. Likewise, if any mujtahid is unable to travel to the place of conducting ijma`, he can send his opinion through phones, faxes, telexes, emails, websites, or even he can appear before other mujtahids through teleconferences.3.      It is true that the agreement on a specific issue is not easy, but it cannot be impossible. Examples of the companions prove that after their disagreement for a while, they were able to be integrated on rulings for many newly arisen issues of their times. During modern times, the international community has united themselves on many common issues. If they can be united, Muslim mujtahids also should be able to be united on rulings for certain issues of the ummah of today.4.      Moreover, the argument that it is not possible for an ijma`ic ruling to be known to all Muslims is not acceptable because the media of transmitting information is so advanced that within a few minutes or so following making any ijma`ic decision it could reach all Muslims all over the world. This could be done through televisions, radios and Internet websites.