JAMIA MILLIA ISLAMIA

FACULTY OF LAW

PROJECT

ISLAMIC JURISPRUDENCE

IJMA AND QIYAS AS A SOURCE OF LAW

SUBMITTED TO:

DR. GHULAM YAZDANI

SUBMITTED BY:

UMMEY KULSUM KHAN

ROLL NO. 69

STTUDENT ID: 20183185

B.A. LL.B. (Regular)

IInd Year/ IIIrd Semester

Batch -2018-2023
 ACKNOWLEDGEMENT

I would like to express my gratitude to Dr. Ghulam Yazdani for giving me this golden
opportunity to explore on this topic. His immense knowledge and teaching skills along with her
helping disposition are where all of this stemmed from. Next, I would thank my seniors in the
faculty who gave us guidelines as to how to go about the research. These are the people who
were always there with me in the making of this project. Heartfelt thanks to all the above-
mentioned people.
INTRODUCTION

Various sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the
body of Islamic law. The primary sources, accepted universally by all Muslims, are the Qur'an
and Sunnah. The Qur'an is the holy scripture of Islam, believed by Muslims to be the direct and
unaltered word of Allah. The Sunnah consists of the religious actions and quotations of the
Islamic Prophet Muhammad and narrated through his Companions and Shia Imams. However,
some schools of jurisprudence use different methods to judge the source's level of authenticity.

As Islamic regulations stated in the primary sources do not explicitly deal with every conceivable
eventuality, jurisprudence must refer to resources and authentic documents to find the correct
course of action. According to Sunni schools of law, secondary sources of Islamic law are
consensus among Muslims jurists, analogical deduction, al-Ra'y; independent reasoning, benefit
for the Community and Custom. Hanafi school frequently relies on analogical deduction and
independent reasoning, and Maliki and Hanbali generally use the Hadith instead. Shafi'i school
uses Sunnah more than Hanafi and analogy more than two others. Among Shia, Usuli school of
Ja'fari jurisprudence uses four sources, which are Qur'an, Sunnah, consensus and aql. They use
ijma under special conditions and rely on aql (intellect) to find general principles based on the
Qur'an and Sunnah, and use usul al-fiqh as methodology to interpret the Qur'an and Sunnah in
different circumstances, and Akhbari Jafaris rely more on Hadith and reject ijtihad. According to
Momen, despite considerable differences in the principles of jurisprudence between Shia and the
four Sunni schools of law, there are fewer differences in the practical application of
jurisprudence to ritual observances and social transactions

IJMA

The third source of law, Ijma or the consensus of scholars signifies the importance of delegated
legislation to the Muslim community. The Muslim society requires such a rule making power to
meet the practical problems for the implementation of Islamic Shariah (Islamic Law). 1Ijma has
been technically defined as the consensus of the jurists of a certain period over a religious matter.
1
Noah tesch, Ijma as a source of law, available at www.Britannica.com (ast visited 1st Nov 2019).
Ijma is considered a sufficient evidence for action because the Prophet if Islam said, “Muslim
will never agree on a wrong matter.” As such the agreement of the scholars of Islam on any
religious matter is a source of law in Islam.2

Ijma constitutes the unanimous agreement of a group of jurists of a particular age on a specific
issue and constitutes the fourth and final source of law in Shafi’i’s methodology. If questions
arose about a Quranic interpretation or an issue where no there no guidance from either the
Quran or sunna, jurists applied their own reasoning (ijtihad) to come to an interpretation.
Through time, “one interpretation would be accepted by more and more doctors of law. Looking
back in time at the evolved consensus of the scholars, it could be concluded that an ijma of
scholars had been reached on this issue.” Unfortunately, unanimous agreement rarely happened
among intellectual elite and since there were always diverse opinions, one could always find
several scholars of the day who concurred on an issue. Also, the definition of ijma and which
ijma would be considered valid was a point of contention, because ijma is not simply the
consensus of all past jurists. Besides, using the concept of ijma poses the problem of having to
look to the past to solve the problems of the future, and scholars of yesteryear didn’t wrestle the
same issues that are challenging Muslims today.

TYPES OF IJMA

There are two types of ijma’:

1) Explicit Ijma’ (ijma’ sarih): “one in which the legal opinions of all the mujtahids of one
period converge in relation to legal issue, and each one of them states his opinion
explicitly.” This is realized sometimes by their meeting in one place and examining an
issue in question and finally they express a unanimous opinion. It may also take place
when an issue occurred and every mujtahids give the same legal opinion. 3

2) Silent or tacit ijma’ (ijma’ sukuti): It takes place when some mujtahid, one or more, give
a legal opinion with regard to specific rule about a particular legal issue, then the rest of
them are informed of this opinion and they keep silent and they neither acknowledge it

2
M. Hashmi Kamali, Principles of Islamic Jurispredence, 3rd ed. (Islamic Texts Society) 2005.
3
Id at 1.
 nor object to it. Position of Ijma’ as a Source of Islamic Law Position of express ijma’
The majority of Muslim jurists, particularly the jurists of four well-known schools of law,
are in agreement that express ijma’ is an authoritative source of Islamic law. It is
incumbent on the Muslim to follow the legal rule of Islamic law that derived from ijma’
as similar to the rule established by the text of the Qur’an and the Sunnah. The legal rule
based on ijma’ is definitive and it is not permitted to oppose it. In addition, the mujtahids
are not allowed to exercise ijtihad on the legal issue that has been settled through ijma’.

PROOF AND JUSTIFICATION OF IJMA’ AS A SOURCE OF ISLAMIC LAW

It is established by the Qur’an and the Sunnah. The Qur’an: “ O ye who believe! Obey Allah and
Obey the Messenger and those charged with authority among you. If ye differ in anything among
yourselves, refer it to Allah and His Messenger…” (al-Nisa’(4):59) The word ‘uli al-amr means
ulama’ (scholars) of the community.

The Sunnah; There are many Sunnahs indicated that the Muslim community is infallible in their
agreement. Although each of this Sunnah is probable if it stands independently but collectively
they are definitive and convey the same idea.4 This make adherence to ijma’ is obligatory on the
Muslims. • “My community will not agree on mistake.” “My people will not agree on an error” •
I prayed to Allah, the Exalted, that my community may not agree on error, and He gave it to
me.” “Allah’s hand is over the community” 5

The position of silent ijma’ The Muslim jurists have different of opinion regarding the position
of silent ijma’. The first view is the view of Imam Shafi’i and the Malikis. They holds that the
silent ijma’ is not considered to be ijma’ nor a probable proof. The argument: Silence cannot be
considered as consent to the opinion expressed by others. Since no statement can be attributed to
a silent person. Possibly he might have kept his silent due to respect for the one who expressed
the opinion, for fear of that person, or he could not form his opinion about that problem and so
on. Silence, therefore, cannot be considered as an evidence of agreement.The second view,
majority of the Hanafi jurists and some of the Hanbali jurists, maintains that silent ijama’ is an
ijma’ like an explicit ijma’. It is legally binding and definitive source. The argument is that
4
Id at 2.
5
ibid
silence is an evidence of consent if there is no any circumstantial evidence that indicated
otherwise, and if there is no any constraint to express the opinion. It is improbable that the jurists
abstain from pronouncing a correct rule of Islamic law. The third group is the opinion of some
jurists of the Hanafi and Shafi’i. They hold that silent ijma’ is not ijma’ but it is a probable proof.
The argument of this view is that ijma’ is the agreement of all mujtahids, but silent ijma’ does
not fulfill this condition. However, it is considered as a proof because the opinion expressed by
some jurists is not opposed by anyone.6

BASIS OF IJMA’ (SANAD AL-IJMA’)

The legal theorists hold that there must be some proof to which the mujtahis refer to in their
agreement. • They are in agreement that the Qur’an and the Sunnah can be a proof for ijma’. E.g.
of ijma’ based on the Qur’an; The prohibition of marriage with grandmother and granddaughter.
This ijma’ is relied on the verse “Prohibited to you (for marriage) your mothers, daughters…”
(al-Nisa’(4):23). The jurists hold that the meaning of mother is an origin and daughter is a
branch. E.g. of ijma’ based on the Sunnah. Ijma’ on the portion of grandmother in inheritance is
one-sixth. This ijma’ is based on the Sunnah where the Messenger awarded one-sixth to the
grandmother. However, the jurists have different of opinion regarding to other proof like qiyas
and public interest (maslahah).7

Ijma has made a worthy contribution to Islamic law since it has made possible changes to suit the
needs of changing times and usages, inasmuch as it has been influenced by the opinions of jurists
in all cases not provided for in the Quaran or the traditions, or where those provisions were not
explicit.8

6
Ibid.
7
Dejongh, E.M., “Foreign language interpreters in the courtroom: The case for linguistic and cultural
proficiency.” The Modern Language Journal 75(3): 285–295. (1991).
8
Mahmassani at p. 48.
 QIYAS

Qiyas or analogical deduction is the fourth source of Sharia for the Sunni jurisprudence. Shiites
do not accept qiyas, but replace it with reason (aql). Qiyas is the process of legal deduction
according to which the jurist, confronted with an unprecedented case, bases his or her argument
on the logic used in the Qur'an and Sunnah. Qiyas must not be based on arbitrary judgment, but
rather be firmly rooted in the primary sources

Supporters of qiyas will often point to passages in the Qur'an that describe an application of a
similar process by past Islamic communities. According to Hadith, Muhammad said: "Where
there is no revealed injunction, I will judge amongst you according to reason." Further, he
extended the right to reason to others. Finally, qiyas is sanctioned by the ijma, or consensus,
amongst Muhammad's companions.9

The success and expansion of Islam brought it into contact with different cultures, societies and
traditions, such as those of Byzantines and Persians. With such contact, new problems emerged
for Islamic law to tackle. Moreover, there was a significant distance between Medina, the Islamic
capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find
novel Islamic solutions without the close supervision of the hub of Islamic law (back in Medina).
During the Umayyad dynasty, the concept of qiyas was abused by the rulers. The Abbasids, who
succeeded the Ummayads defined it more strictly, in an attempt to apply it more consistently.

The general principle behind the process of qiyas is based on the understanding that every legal
injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an
injunction can be deduced from the primary sources, then analogical deduction can be applied to
cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating
property. Thus qiyas leads to the conclusion that all intoxicants are forbidden.10

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
9
Ahmad Hasan, “The Principle of Qiyas in Islamic Law—An Historical Perspective”,1 5, Islamic Studies 205
(1976). available at www.jstor.com (last visited on 1st Nov 2019).
10
Ibid.
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). 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.

“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.

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.11

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".12

PREFERENCE

Abu Hanifa developed a new source called istihsan, or juristic preference, as a form of analogical
deduction (qiyas). Istihsan is defined as:

• Means to seek ease and convenience,

11
Hallaq, W.B. 2009. An introduction to Islamic Law. Cambridge: Cambridge University Press.
12
Mikkelson, H., “On the horns of a dilemma: Accuracy vs. brevity in the use of legal terms by court interpreters.”
Translation and the Law, ed. M. Morris, 201–218. Amsterdam/Philadelphia: John Benjamins Publishing Company.
(1995).
• To adopt tolerance and moderation,

• To over-rule analogical deduction, if necessary.

The source, inspired by the principle of conscience, is a last resort if none of the widely accepted
sources are applicable to a problem. It involves giving favor to rulings that dispel hardship and
bring ease to people. This doctrine was justified directly by the Qur'an: "Allah desires you ease
and good, not hardship". Though its main adherents were Abu Hanifa and his pupils (such as
Abu Yusuf), Malik and his students made use of it to some degree. The source was subject to
extensive discussion and argumentation, and its opponents claimed that it often departs from the
primary sources.13

This doctrine was useful in the Islamic world outside the Middle East where the Muslims
encountered environments and challenges they had been unfamiliar with in Arabia. One example
of isthisan is cited as follows: If a well is contaminated it may not be used for ritual purification.
Istihsan suggests that withdrawing a certain number of buckets of water from the well will
remove the impurities.14 Analogical deduction (qiyas), however, says that despite removing some
of the water, a small concentration of contaminants will always remain in the well (or the well
walls) rendering the well impure. The application of analogical deduction means the public may
not use the well, and therefore causes hardship. Thus the principle of istihsan is applied, and the
public may use the well for ritual purification.15

PUBLIC GOOD

13
Ibid.
14
Id at 6.
15
Obenaus, G.. The legal translator as information broker. In Translation and the Law, ed. M. Morris, 247–259.
Amsterdam/Philadelphia: John Benjamins Publishing Company (1995).
Imam Malik developed a tertiary source called al-maslaha al-mursalah, which means social
benefit. According to this source of Islamic law, rulings can be pronounced in accordance with
the "underlying meaning of the revealed text in the light of public interest". In this case the
jurists uses his wisdom to pursue public interest. This source is rejected by the Shafi'is.16

Textual indication

Shafi'i accepted cases in which he had to be more flexible with the application of Qisas. Similar
to Abu Hanifa and Imam Malik, he developed a tertiary source of legislation. The Shafi'i school
adopted istidlal, a process of seeking guidance from the source. Istidlal allowed the jurists to
avoid "strict analogy" in a case where no clear precedent could be found. In this case, public
interest was distinguished as a basis for legislation.

Scholars divide istdilal into three types. The first is the expression of the connection existing
between one proposition and another without any specific effective cause. Next, istidlal could
mean presumption that a state of things, which is not proved to have ceased, still continues. The
final type of istidlal is the authority as to the revealed laws previous to Islam.17

SOME GENERAL TERMS

Wajib -- obligatory, necessary, incumbent. An act which must be performed. You will be
rewarded for performing it and punished for neglecting it, e.g., the daily prayers, the fasting of
Ramadhan.

Ihtiyat wajib -- precautionarily obligatory. Its significance is the same as that of wajib with the
difference that in the problems where a mujtahid says it is "precautionarily obligatory", one has
the option of leaving his taqlid (following) in this particular problem and following the rulings of
the second-best mujtahid in that problem.18

16
Id at 9.
17
Id at 3.
18
Hallaq, W.B. An introduction to Islamic Law. Cambridge: Cambridge University Press.(2009).
Haram -- forbidden, prohibited. It is necessary to abstain from the acts which are haram. If
someone performs a haram act, he will be punished, e.g., eating pork.19

Sunnat, Mustahab -- recommendable, desirable. The acts whose neglect is not punished, but
whose performance is rewarded, e.g., the call for prayers (adhan).

Makruh -- reprehensible, disliked. The acts whose performance is not punished, but whose
avoidance is rewarded, e.g., eating in the state of janabat.

Ja'iz, Halal, Mubah -- permitted, allowed, lawful, legal. The acts or the thing which are
permitted and lawful. There is no reward for performing it and no punishment for neglecting it,
e.g., drinking tea. Mubah is exclusively used for lawful things, not for permitted actions.20

CONCLUSION

The sources of Islamic law are Quran, Sunna [Hadith] Ijma andQiyaswhich are the integrated

whole of Islamic legal system. Thus whenever cases arise one has first to resort to the Quran and
if the case is not resolved with the help of Quran help can be obtained from the other three
sources respectively. Meaning “… right judgment can be arrived at through four sources:  the
express words of the book [Quran], unanimously recognized traditions (hadith), logical
reasoning [Qiyas] and consensus of the community [jjma]”.

19
Smith, “Culture clash: Anglo-American case law and German civil law in translation.”In Translation and the
Law, ed. M. Morris, 179–197. Amsterdam/Philadelphia: John Benjamins Publishing Company. (1995).
20
Ibid.
BIBILIOGRAPHY

Books:

M. Hashmi Kamali, Principles of Islamic Jurispredence, 3rd ed. (Islamic Texts Society) 2005.

Obenaus, G.. The legal translator as information broker. In Translation and the Law, ed. M.
Morris, 247–259. Amsterdam/Philadelphia: John Benjamins Publishing Company (1995).

Hallaq, W.B. An introduction to Islamic Law. Cambridge: Cambridge University Press.(2009).

Web reference:

www.jstor.com

www.britannca.com

www.indianlegalservice.com

www.cambridge.org