8.6. REFORM PROPOSALS
The modern critics of ijma’ consider that ijma’ according to its classical definition fails to relate to the search for finding solutions to the problems of the community in modern times. Ijma` is hence retrospective and too slow a process to accommodate the problems of social change. These and other considerations concerning the relevance of ijma` to social realities have prompted a response from modern scholars. We have already discussed the view of `Abd al-Wahhab Khallaf in regard to the feasibility of ijma`. Khallaf, however, was not the first to criticise ijma’.
An early- critique of ijma’ was advanced by Shah Wali Allah Dihlawi (d. 1176/1762), who tried to bring ijma` closer to reality and came out in support of `relativity’ in the concept of ijma`. Dihlawi overruled the notion of universal consensus in favour of relative ijma`. Dihlawi is also critical of the interpretation that is given to the ahadith concerning ijma`. He argues that the Hadith, `My community shall never agree upon an error’ did not envisage ‘ijma` at all. Hence the correct meaning of this Hadith may be determined in the light of another Hadith which provides that `a section of my community will continue to remain on the right path […].’ Ijma` in other words does not mean a universal agreement but only the consensus of a limited number of mujtahidun. With regard to the other ahadith that are quoted in support of ijma`, Dihlawi maintains that the two principal aims of these ahadith are the political unity of the ummah, and the integrity of the Shari’ah. The same author maintains that ijma’ can be justified on the bases of all such ahadith that protect the unity and integrity of the community. But he adds that ijma` has never been meant to consist of the universal agreement of every member of the community (or of every learned member of the community for that matter), as this is plainly impossible to achieve. It has neither happened in the past nor could it conceivably happen in the future. Ijma’, according to Shah Wali Allah, is the consensus of the ulema and men of authority in different towns and localities. In this sense, ijma’ can be held anywhere at any time. The ijma’ of the Companions during the caliphate of Umar b. al-Khattab, and the ijma` that was concluded in Mecca and Madinah under the pious caliphs, are all examples of ijma` in its relative sense.
Muhammad Iqbal is primarily concerned with the question of how to utilise the potentials of ijma` in the process of modern statutory legislation. He considers it an important doctrine, but one which has remained largely theoretical. `It is strange,’ Iqbal writes, that this important notion ‘rarely assumed the form of a permanent institution’. He then suggests that the transfer of the power of ijtihad `from individual representatives of schools to a Muslim legislative assembly […] is the only possible form ijma` can take in modern times’. In such an assembly, the ulema should play a vital part, but it must also include in its ranks alymen who happen to possess a keen insight into affairs. Furthermore Iqbal draws a distinction between the two functions of ijma’, namely:
Discovering the law and implementing the law. The former function is related to the question of facts and the latter relates to the question of law. In the former case, as for instance, when the question arose whether the two small suras known as ‘Mu’awwazatain’ formed part of the Qur’an or not, and the Companions unanimously decided that they did, we are bound by their decision, obviously because the Companions alone were in a position to know the fact. In the latter case, the question is one of interpretation only, and I venture to think, on the authority of Karkhi, that later generations are not bound by the decisions of the companoins.
It is thus clear that Iqbal retains the binding character of ijma’ only insofar as it relates to points of fact, but not with regard to ijma’ that is based on juridical ijtihad. This distinction between the factual and juridical ijma’ will presumably not apply to the ijma` that Iqbal has proposed: the collective decisions of the legislative assembly will naturally be binding on points of law.
Iqbal’s proposed reform has been fairly widely supported by other scholars. It is a basically sound proposal. But to relate this to the idea of a distinction between the factual and ijtihadi ijma` seems questionable. Apart from the difficulty that might be involved in distinguishing a factual from a juridical ijma’ one can expect but little support for the view that the ijma` of the Companions on ijtihadi matters is not binding.
Iqbal’s views have, however, been criticised on other grounds. S. M. Yusuf has observed that Iqbal was mistaken in trying to convert ijma` into a modern legislative institution. Yusuf argues that ijtihad and ijma’ have never been the prerogatives of a political organisation, and any attempt to institutionalise ijma’ is bound to alter the nature of ijma` and defeat its basic purpose. For ijtihad is a non-transferable right of every competent scholar, and a mujtahid is recognised by the community by virtue of his merits known over a period of time, not through election campaigns or awards of official certificates. The process of arriving at ijma` is entirely different from that of legislation in a modern state assembly. Ijma’ passes through a natural process which resembles that of the ‘survival of the fittest’. No attempt is made in this process to silence the opposition or to defeat the minority opinion. Opposition is tolerated until the truth emerges and prevails. Ijma’ is a manifestation of the conscience of the community, and it is due mainly to the natural strength of ijma’ and the absence of rigid organisation ‘that no one is able to lay his hands on Islam; when anyone tries to hammer Islam, he ultimately finds to his chagrin that he has only been beating in the air.
Ahmad Hasan finds some weaknesses In Yusuf’s criticism of Iqbal, and observes that `Dr Yusuf has probably not understood Iqbal’s view correctly.’ Hasan finds Iqbal’s view to the effect that ijtihad should be exercised collectively instead of being a preserve of the individual mujtahidun, to be basically sound. `Ijtihad today cannot be exercised in isolation. Modern conditions demand that it should be exercised collectively. A mujtahid may be an expert in Islamic learning, but he cannot claim to be perfectly acquainted with the social conditions of a country and the diverse nature of its problems. Ahmad Hassan goes on to point out that the legislative assembly is the right place for the purpose of collective ijtihad, which would in turn provide an effective method of finding solutions to urgent problems.
The late Shaykh of al-Azhar, Mahmud Shaltut, observes that the conditions of a conclusive ijma`, especially the one which requires the agreement of all the mujtahidun of the ummah, is no more than a theoretical proposition which is never expressed in reality. Ijma’, in reality, has often meant either the absence of disagreement (`adam al-ilm bi’l-mukhalif), or the agreement of the majority only (ittifaq al-kathrah). Both of these are acceptable propositions which may form the basis of general legislation. Shaltut goes on to quote in support the Qur’anic ayah in sura al-Baqarah (2:286) that `God does not assign to any soul that falls beyond its capacity.’ Shaltut is not opposed to the institutionalization of ijma` provided that this does not violate the freedom of opinion which must in all eventualities be granted to the constituents of ijma`. Consensus must never be subjected to a condition which subjugates freedom of opinion to the arbitrary exercise of political power. Shaltut further adds that since the realization of maslahah through consensus is the objective of ijma`, maslahah is bound to vary according to circumstances of time and place. Hence the mujtahidun who participate in ijma`, and their successors, should all be able to take into consideration a change of circumstances and it should be possible for them to review a previous ijma` if this is deemed to be the only way to realize the maslahah. Should they arrive at a second ijma`, this will nullify and replace the first, and constitute a binding authority on all members of the community.
by M. H. Kamali.
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