Ls 2302 – Islamic Legal System

Topic:
Ijtihad between the Necessity and an Obligation in Solving the Problem arose in the Society

Prepared By:
Mohammad Hazwan Hakkem Bin Jamaluddin (18B0209)
Haji Mohammad Ifwat Bin Haji Md Jane (18B0210)
Mohammad Nizamuddin Bin Mohammad Damarol (18B0211)
Noor Saffrena Binti Omarali (18B0215)
Norazatul Amal Nadhirah @ Norhafrina Binti Norariffin (18B0216)
Nurin Najihah Binti Azry (18B0222)
Bachelor Of Laws (L.LB) And Bachelor Of Shariah Laws (BSL)

Supervisor:
Ustazah Hajah Nurzakiah
Lecturer
Faculty of Shariah and Law
Sultan Sharif Ali Islamic University

Semester 2
2020/2021 Session

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 CONTENTS

Pages

1. Introduction of Ijtihad……………………………………………………………………..4

2. Brief History of Ijtihad…………………………………………………………………….4

2.1 Fomative Period……………………………………………………………………….4
a. Classical Era……………………………………………………………………….5
b. Modern Era………………………………………………………………………...5

3. How Does Ijtihad Works?....................................................................................................6

4. Necessity…………………………………………………………………………………..8
4.1 Definition……………………………………………………………………………...8
4.2 Necessity as Defined by Classical Jurists……………………………………………...9
4.3 Necessity as Defined by Contemporary Jurists………………………………………...9
4.4 Necessity in The Qur’an And the Traditions of The Prophet (Sunnah)……………….10

5. Obligation……………………..…………………………………………………………11
5.1 What Is an Obligation?.................................................................................................11
5.2 Relations of Obligation in Ijtihad…………………………………………………….12
5.3 Examples of Ijtihad as an Obligation…………………………………………………12

6. Comparison Between Necessity & Obligation…………………………………………...13

7. Ijtihad in The Modern Society?..........................................................................................13

7.1 Ijma From Islamic Early Times to Modern Times……………………………………13
7.2 Agreement Upon Jurists……………………………………………………………...14
7.3 Steps to Be Taken for Conducting Ijma At Present…………………………………...15

8. Conclusion……………………………………………………………………………….17

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 1. Introduction of Ijtihad

A law based on Islam can be defined as divine legislation or Shari'ah which organizes human life
and his divers relations. In Islamic law the use of individual reasoning in general is called Ijtihad
or Ijtihad al-ra’y. Ijtihad is the process practised by a jurisprudent to discover secondary divine
legislation (laws) regarding the organizing of human life and his diverse relations or endeavouring
to discover and deduce the Islamic laws and regulations from their sources like the laws concerning
worship, possession, business, property, judiciary, politics and family affairs, etc. Ijtihad is also
defined as a learning (knowing) process and has a important, progressive and civil role in the life
of an individual and the society altogether with the state. It participate in developing the civil life
and opening the legislative prospects before it. Without the process of Ijtihad, many human
activities are difficult to develop in the sphere of an Islamic life.1

The principle of Ijtihad by jurists is considered to have roots in a Hadith, in a discourse between
the Prophet and Muadh Ibn Jabl, a qadi, on his way to al-Yaman as judge. The Prophet asked him
how he would decide matters coming up before him. "I will judge matters according to the Qur'an",
said Muadh. "If the Book of God contains nothing to guide me, I will acts on the precedents of the
Prophet of God, and if it is not in that either, then I will make a personal effort [Ijtihad] and judge
according to that". The Prophet is said to have been most pleased at the reply.

2. Brief History Of Ijtihad

2.1 Fomative Period

During the early period, Ijtihad referred to the exercise of one's discretionary opinion (ra'y) on the
basis of the knowledge of the precedent (‘ilm). Jurists used ra'y to help reach legal rulings, in cases
where the Qur'an and Sunna did not provide clear direction for certain decisions. It was the duty
of the educated jurists to come to a ruling that would be in the best interest of the Muslim
community and promote the public good.2

Muslims claim that some of the companions of the Prophet had the good fortune to acquire
proficiency in jurisprudence and legislation under his guidance and they had recourse to the

1
Ijtihad | Accessed on 15TH February 2020.
http://www.alseraj.net/maktaba/kotob/english/Fiqh/IslamicLaw/islam/books/islamic-laws/04.htm
2
Early Period of Ijthad. Accesed on 16 th February 2020. https://en.m.wikipedia.org/wiki/Ijtihad

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process or exercise of Ijtihad when a need arose in his absence. This practice continued in issuing
fatwas after his death during the Khulafa Rashidun and the Ummayad period and was known as
Ijtihad al-ra'y, an expression that occurs frequently in this early period. Ijtihad was linked with ra'y
and was treated as a legitimate activity. The term carried the connotation of exerting one's efforts
on behalf of the Muslim community and its interests (al-Ijtihad fi sabil al-Muslimin).3

2.2 Classical Era

By the beginning of the 10th century, development of Sunni jurisprudence prompted leading Sunni
jurists to state that the main legal questions had been addressed and the scope of ijtihad was
gradually restricted. As religious law continued to develop over time, ra'y became insufficient in
making sure that fair legal rulings were being derived in keeping with both the Qur'an and Sunna.
However, during this time, the meaning and process of ijtihad became more clearly constructed.
Ijtihad was “limited to a systematic method of interpreting the law on the basis of authoritative
texts, the Quran and Sunna,” and the rulings could be “extended to a new problem as long as the
precedent and the new situation shared the same clause.”

In the modern era, this gave rise to a perception among Western scholars and lay Muslim public
that the so-called "gate of ijtihad" was closed at the start of the classical era. While recent
scholarship has disproved this notion, the extent and mechanisms of legal change in the post-
formative period remain a subject of debate.

2.3 Modern Era

As the practice of ijtihad transformed over time, it became religious duty of a mujtahid to conduct
legal rulings for the Muslim society. Mujtahid is defined as a Muslim scholar that has met certain
requirements including a strong knowledge of the Qur'an, Sunna, and Arabic, as well as a deep
understanding of legal theory and the precedent; all of which allows them to be considered fully
qualified to practice ijtihad. Starting from the 18th century, some Muslim reformers began calling
for abandonment of taqlid and emphasis on ijtihad, which they saw as a return to Islamic origins.
Public debates in the Muslim world surrounding ijtihad continue to the present day. The advocacy
of ijtihad has been particularly associated with Islamic modernists and purist Salafi thinkers.

3
History of Ijtihad in Early Period | Accesed on 1th February 2020 https://www.google.com/m?q=china&client=ms-
opera-mobile&channel=new&espv=1

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Among contemporary Muslims in the West there have emerged new visions of ijtihad which
emphasize substantive moral values over traditional juridical methodology. Shia jurists did not use
the term ijtihad until the 12th century, but they employed a rational mode of legal reasoning from
the early period, and its scope was not narrowed as in the Sunni tradition, with the exception of
Zaydi jurisprudence.4

3 How Does Ijtihad Works?

Ijtihad is an essential phenomenon for the survival of the Islamic shari'ah during the Occultation
of the Imam (a.s.). Without the system of ijtihad, we would not be able to apply Islamic laws in
the rapidly changing circumstances of human society.5 The process of deriving the shari'ah laws
from their sources is based on two main branches of Islamic sciences: (1) usulu’l-fiqh and (2) fiqh.

"Usulu’l-fiqh " is the science of the method of deriving the shari'ah laws. It is the methodology
and theory of ijtihad. "Fiqh" is the practice of ijtihad. It is the process of deriving the shari'ah laws.
In usulu'l-fiqh, the mujtahid studies the method of ijtihad; in fiqh, he uses that method to derive
the shari'ah laws.

The first and foremost issue to be discussed is about “the binding authority of conviction”
(hujjiyyatu’l-qat’). The validity of conviction is determined by intellectual reasoning. This is the
corner-stone of ijtihad. It means that the main basis of determining a source of shari’ah is to see
whether or not one can achieve conviction about the laws derived from that source. If a mujtahid
finds that a particular source for example, the Qur' an, is such that he can achieve conviction about
the laws derived from it, then such a source is considered by him as a valid and reliable source for
ijtihad.

The mujtahid has also to study the ways of determining the authenticity of the Legal Proofs. This
problem has given rise to the development of two sciences known as 'Ilmu 'r-Rijal and Dirayatu 'l-
Hadith 6 . 'Ilmu 'r-Rijal literally means 'knowledge about men,' it deals with the biography and
character of the narrators of hadith. On basis of this knowledge, the 'ulama' classify the narrators

4
PDF Ijtihad. Author Muhammad Ibrahim Jannati http://www.imamreza.net/old/eng/imamreza.php?print=880
5
Importance of Ijtihad | Accesed on 17 th February 2020 https://www.al-islam.org/introduction-islamic-shariah-
sayyid-muhammad-rizvi/system-ijtihad
6
"chain of narration" Accesed on 18TH February 2020.

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in different categories; and these categories in turn help in classifying the hadith as authentic or
acceptable or weak or fabricated or unreliable, etc.7

After defining the sources of the shari'ah, the mujtahid has to set up a mechanism to solve the
problems which have not been mentioned in the Qur'an and the sunnah. For example, when a
mujtahid looks into his sources for the ruling on smoking, he does not find anything specific on it.
In Usulu 'l-Fiqh, the mujtahid establishes some "procedural rules" or "practical principles" which
he will use in such cases. These rules or principles are known as "al-usulu 'l-‘amaliyyah".

The Usulu ‘l-‘Amaliyyah are four: (1) asalatu ‘l-istishab; (2) asalatu ‘l-bara’ah; (3) asalatu ‘l-
ihtiyat; and (4) asalatu ‘t-takhyir.

Asalatu ‘l-Istishab means the principle or rule of continuity. This principle is used in a case in
which a person has "a previous certainty" and "a present doubt" about the same thing. For example,
there is a glass of water on my table. I am sure that it was ritually pure (tahir) in the morning, but
now I doubt in its ritual purity. The principle of istishab says that act on your previous certainty
and ignore your present doubt because doubt cannot over-ride certainty. This procedural rule has
been taken from the following hadith of Imam Ja’far as-Sadiq (a.s.) who said in the answer to
Zurarah that “doubt cannot over-ride certainty; it can be over-ridden only by another certainty.”

Asalatu 'l-Bara'ah means the principle of exoneration. This procedural rule is applied in a case
which has not been mentioned, explicitly or implicitly, in the sources of the shari'ah such as Qur’an
and Sunnah. Since the shari'ah has no opinion in this issue, the Muslims are free to do whatever
they like. For example, when dealing with the question of smoking, the mujtahid does not find any
opinion about it in the sources of shari'ah. In such a case, he would apply the principle of
exoneration and say that "Smoking is not haram."

Asalatu ' l-Ihtiyat means the principle of precaution. This principle is applied in a case where there
is only partial knowledge about the law; that is, in cases of al-‘ilmu ‘l-ijmali, where there is a semi-
doubt and a semi-certainty. In such cases, the shari'ah expects us to act precautionarily. A most
familiar example where this principle is applied is the case of Friday prayer during the major
occultation of the Present Imam. We know that on Fridays, one of the two prayers either Friday

7
System of Ijthad, The Problems of Aunthenticity | Accesed on 17 th February 2020 https://www.al-
islam.org/introduction-islamic-shariah-sayyid-muhammad-rizvi/system-ijtihad

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prayer or noon prayer is definitely wajib, but we do not know which one. Application of asalatu
‘l-ihtiyat in this case would mean that it is precautionarily better to pray both prayers to ensure that
we have performed what was expected of us.

The last procedural rule is known as Asalatu ‘t-Takhyir, which means the principle of choice. This
principle is applied in cases similar to that of asalatu ‘l-ihtiyat, that is, semi-doubt and semi
certainty. However, the principle of choice is applied where it is not possible to act on both sides
of the issue. For example, when dealing with the noon or Friday prayer issue, some mujtahids may
conclude that saying both prayers is not practical and specifying one without a clear evidence is
not correct. Therefore, they apply the principle of choice and say that one can say either Friday
prayer or noon prayer.

The mujtahid has to layout a mechanism which he will use in case he comes upon contradiction in
his sources. Our Imams have given quite a few guidelines to solve such problems. The
contradiction between the proofs can be found in different forms and has to be solved in different
ways8. Between a nass and a hadith with an "apparent" meaning: the former is preferred over the
latter. For example, one hadith says, "If you break your oath, then you must free a slave;" whereas
another hadith says, "If you break your oath, then you must free a Muslim slave." The second
hadith will be preferred and used to curb the general implication of the first hadith. 9

4 Necessity

4.1 Definition

Darurah is derived from darar in the Arabic language, which is an injury that cannot be avoided.
It is also the state of hardship (shiddat al-hal) or as the Arabs would say: ‘Necessity forces me to
do such and such (hamalatni al-darurah ala kadha wa kadha). Ibn al-'Arabi said that al-mudtarr
is the one who is forced and compelled to do something which he is able to do.

In short, necessity (darurah) in the Arabic language means:

1- Dire need for something (shiddat al-hajah).

8
The Procedural Rules (Al-Usulu'l-'Amaliyyah) | Accessed on 18th February 2020. https://www.al-
islam.org/introduction-islamic-shariah-sayyid-muhammad-rizvi/system-ijtihad
9
Secondary Source of Shariah Law Accessed on 18 th February 2020. http://www.islamic-sharias.com/secondary-
sources-of-sharia-law/

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 2- The state in which one is being forced to do something.

3- The intensity of liar which is injury or harm.

This linguistic meaning is an essential part of the juristic technical definition of necessity as we
will see later.

4.2 Necessity As Defined By Classical Jurists

From the Hanafi school, Abu Bakr al-Jassäs has defined necessity as, ‘The meaning of necessity,
here, is the fear of injury (damn to one's life or some of one's organs if one refrained from eating.’10
Al-Zarkashi, al-Suyuti and al-Hamawi al-Hanafi have defined necessity as follows: ‘It is a
situation in which one reaches a limit where if one does not take a prohibited thing, one will die
or be about to die.’11

All these definitions have encompassed the following elements:

1. There must be a fear of losing life or a fear of severe injury to one's organs.

2. This fear is to be wiped out by eating a prohibited thing.

4.3 Necessity As Defined By Contemporary Jurists

Ali Hayder in his famous book Durar al-kiukkim had explained the comprehensive definition of
necessity which according to him, necessity is a compelling situation where one has to commit an
illegal act.

M. al-Zargä' defined necessity as where a person would be in a state of not satisfied resulting in
real danger, such as a total compulsion or the fear of death in case of starvation.

It appears that there are certain elements to be included in the definitions of necessity as follows:

1. There should be a compelling situation.

2. There should be a genuine fear of death or of severe injury.

10
Jasas, vol. 1, p. 129.
11
Manthfa , vol. 2, p. 319.

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 3. Such an injury should be directed to one of the five fundamentals (al-daruriyat al-
khams).

4. Committing an illegal act is the only way out of such a situation.

To conclude the matter of definition, one can observe that contemporary Muslim jurists have
widened the definition of necessity in two aspects:

1- The fear of death is not the only state of necessity. The state of necessity can exist if there
was a genuine fear of injury to one of the five fundamentals.

2- The state of necessity is not caused only by starvation. It might be caused also by
compulsion, aggression, or change in circumstances in contracts etc.

4.4 Necessity In The Qur’an And The Traditions Of The Prophet (Sunnah)

There is evidence in the Qur’an also the traditions of the Prophet Muhammad (Peace Be Upon
Him) which lays down the principle and the foundations of necessity. Islamic jurists have relied
on such evidence to elaborate the different aspects of necessity.

In the Qur'an, there are numerous verses which explicitly or implicitly mentioned the subject
matter of necessity. The word injury (darar) has been mentioned, on different occasions and in
different forms, seventy times in the Qur'an. It is true that Allah said in the well-known verse:

ٌ ُ‫غف‬
‫ور َرحِ ي ٌم‬ َ ‫َّللا‬
َ َّ ‫علَ ْي ِه ۚ ِإ َّن‬
َ ‫عا ٍد فَ ََل ِإثْ َم‬
َ ‫اغ َو ََل‬
ٍ َ‫غي َْر ب‬ ُ ‫ض‬
َ ‫ط َّر‬ ِ َّ ‫ير َو َما أ ُ ِه َّل ِب ِه ِلغَي ِْر‬
ْ ‫َّللا ۖ فَ َم ِن ا‬ ِ ‫علَ ْي ُك ُم ْال َم ْيتَةَ َوالد ََّم َولَ ْح َم ْالخِ ْن ِز‬
َ ‫ِإنَّ َما َح َّر َم‬

“He has only forbidden to you dead animals, blood, the flesh of swine, and that which has been
dedicated to other than Allah. But whoever is forced (by necessity), neither desiring (it) nor
transgressing (its limit), there is no sin upon him. Indeed, Allah is Forgiving and Merciful.”12

From this ayah, it has been deduced that the person who is in dire need can in fact eat from
whatever he finds, even from prohibited food, to the extent that it is enough to keep him alive.

As for from the Sunnah, there are numerous traditions that have tackled the different aspects of
necessity. They compose an important source for forming the principle of necessity. Follows are
the examples:

12
Surah al-Baqarah: 173

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1. A man alighted at Harrah with his wife and children. Another man said (to him): My she-camel
has strayed; if you find it, detain it. He found it, but did not find its owner, and it fell ill. His wife
said: Slaughter it. But he refused and it died. She said: Skin it so that we may dry its fat and flesh
and then eat them. He said: Let me ask the Apostle of Allah. So, he came to him (the Prophet) and
asked him. He said: Have you sufficient for your needs? He replied: No. He then said: Then eat it.
Then its owner came and he told him the story. He said: Why did you not slaughter it? He replied:
I was ashamed (or afraid) of you. “Another version of this Hadith states that.” It saved their lives
for the rest of that winter.13

2. Abu Waqid al-Laythi said: “I said to the Prophet: Messenger of Allah, we are living in a land
where we are subjected to hunger: what is permissible for us from dead animals? The Prophet said:
If you did not drink milk in the morning and did not drink milk in the evening and did not store
dates, then it is up to you to eat.”14

5 Obligation

5.1 What is an obligation?

The term ‘obligation’ is widely used. Depending on the context, the use of the word leads to an
univocal meaning or to ambiguous meanings. For instance, the term ‘obligation’ in the singular or
‘obligations’ in the plural is univocal when it refers to what one party has agreed to perform under
the terms of an agreement. In this sense, the positive counterpart of the obligation is the right
(‘rights and obligations’), that is to say what the creditor is entitled to receive from the debtor. This
is a classical view of the term ‘obligation’ seen as ‘a tie which exists between at least two individual
persons which enables one person to request something from the other’. The obligation should
therefore be perceived as including a legal tie, a legal tie between at least two persons and a
coercitive power enabling the enforcement of the obligation. It should be distinguished from the
chose in action which is ‘the anticipation of the objective economic result expected from the
performance of the obligations’. In this context, it would seem preferable to focus on the term
‘obligation’ exclusively.

13
This hadith was reported by Jibir ibn Samurah. in Sunan Abu Dawood. hadith no: 3816. And in Musaad Ahmad
An Hanbal, Musaad al-Basriyyin hadith number 20397.
14
Ahmad ibn Hanbal, Musnad Ahmad ibn anbal. Musaad al-Basriyyin hadith number 21391 and 21394.

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In terms of Islam, obligation is similar to terms fard. Fard (obligation) is a religious task or duty
that is ordered to be fulfilled through definite and clear evidence. Like making wudu, performing
daily prayers, performing fasting, paying zakah (alms). Fard is divided into two: Fard al-Ayn: A
fard which is obligatory for every individual Muslim. When a Muslim performs it, other Muslims
do not become exempt from them; every Muslim has to perform it individually. Like performing
daily prayers and fasting. Fard al-Kifaya is a fard which is not obligatory for every individual
Muslim; when some Muslims fulfill it, others become exempt from it. If nobody fulfills it, then
the whole community becomes responsible for it and everybody is regarded to have committed a
sin; like performing the janazah prayer when a Muslim dies. The reward of the fard al-kifayah
belongs to the person who fulfills it. The sin of it, when nobody fulfills it, belongs to all Muslims.15

5.2 Relations of Obligation in Ijtihad

Ijtihad is alterable as well as the contemporary issues. If comparing the era of Prophet with this
present day, there are some new cases which have not been existed previously due to the
development, such as: organ transplantation, insurance, narcotics, bank, etc. The contemporary
issues which ijtihad executes are in the branch of knowledge as there is no ijtihad in aqeedah. As
known, Islamic law is used until the Last Day and nation (ummah) want to apply the Islamic law
in every aspect their life. Thus, these contemporary issues need the details status in Islamic law.
However, we cannot find those new issues in Al-Qur’an and the Prophetic texts. Instead, Allah
endowed us the Al-Qur’an and Hadith which we should developed to understand the guidelines on
deriving the rulings. Things that have to solve will be regarded as an obligation to those able to
apply ijtihad to decide the rulings of those things.

5.3 Examples of Ijtihad as an obligation

Back in the older days, ijtihad has been regarded as an important instrument in the world of Islamic
rulings. For instance, it is compulsory for a mujtahid to decide the problems faced by Islam in the
past. For example, deciding whether things that can make people drunk is obviously not a good
thing. Therefore, the mujtahid have the obligations to decide that it is haram for all muslims. Also
things that are obligatory is a must for mujtahid’s to decide the solutions. This can be seen in cases
whether the sea water can be used for wudu’. It is however through ijtihad that wudu is a

15
What is Fard | Questions on Islam | Accessed on 18 th February 2020. https://questionsonislam.com/article/what-
fard

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prerequisite for prayer which is an obligation and through ijtihad it is decided that it is permissible
to use sea water for wudu’. In the modern days, things related to drugs, wines and all that can make
people unconscious are an obligation to the mujtahids to decide the rulings.

6 Comparison Between Necessity & Obligation

In the past the difference between necessity & obligation is rarely seen because Islam was newly
introduced at that time, which was during the time of The Prophet. During that time since it was
new, the problems and difficulties was more of a necessity since it was new at that time and was
in need of being interpreted quickly. In the past, when a problem arose, the first thing they refer to
was The Quran, if there was none in The Quran, they refer and ask The Prophet Muhammad ‫ ﷺ‬, if
The Prophet’s opinion was wrong, Allah will correct The Prophet and give the right solution to
him through “Wahyu”. Therefore, in the past it was more of a necessity to find a solution for the
problem as soon as possible to avoid any conflict and misinterpretation.

This can be seen in the famous hadith that the Prophet (S), while sending Mu'adh to Yemen, asked
him as to on what he would base his judgment. “In accordance with the Book of Allah”, replied
Mu'adh, “But what if you don't find it there?” inquired the Prophet (S). “According to the Sunnah
of the Apostle of Allah”, replied Mu'adh. “But what if you don't find it there too?” asked the
Prophet (S) again. 'I will exert my own opinion', replied Mu'adh. The Prophet (S) put his hand on
Mu'adh's chest and said: “Thank God for assisting His Apostle with what he loves.”

7 Ijtihad In The Modern Society?

7.1 Ijma From Islamic Early Times To Modern Times

Some modern scholars, such as Snouch Hurgronie argues that ijma is used as a method and
principle rather than its contents which are regarded as authoritative, not infallible. Islamic
jurisprudence so far deals with acts of worship, such as praying, fasting and zakat, as well as with
muamalat such legal transaction, family law, public activity, international commerce, international
relations and so forth.

After the death of the Prophet, to whom the Quran was revealed through angel Jibril and from
whom the Sunnah came, ijma and ijtihad become essential, since it is the effective way to solve
new problems in which no solutions or enough explanation can be found in the Quran and Sunnah

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of the Prophet. Jurists including Malik, Shafi’e, Daud al-Zahiri, al-Amidi, al-Ghazali and others
have all discussed the concepts of ijma in detail. The problem, however, is that their ideas or their
decisions are no longer applicable in this modern times which facing tremendous changes in all
spheres of life that have taken places since their day.

The dynamics of modern society are now entirely different. It is necessary to determine the form
which the concept of ijma, should take in modern times in order to give solutions or answers to
the current problems faced by the Muslim society. This reform, however, can be done by re-
examining and re-interpreting medieval legal theory in accordance to the needs of the present time
and environment within the spirit of the Quran and the Sunnah.16

7.2 Agreemeent Upon Jurists

The majority of Muslim jurists maintain that it is possible to conduct ijma’ according to its classical
definition, both during the era of Prophet’s companions and after such era including this modern
times.

Most of the proponents of feasibility of conducting ijma at modern times argue that since ijma’
was possible to be conducted in the past; it should be possible to also conduct it in modern times.
For example, the companions of the Prophet (PBUH) had unanimously agreed to distribute one-
sixth of the inheritance to grandmother and unanimously maintain maintained that marriage with
grandmothers and granddaughters is forbidden and some others. Therefore, the same type of ijma
on those issues that have been remained disputed is even possible in modern times.

The companions of the Prophet (PBUH) conducted ijma due to many new issues raised with no
rulings can be found mentioned neither in the Quran nor in the Sunnah of the Prophet. This reason
at modern times has becomes many times stronger than it was during the era of the Prophet’s
companions because nowadays unlimited new issues has been rising up and continuing to arise
every day for which direct rulings are neither prescribed by the Quran nor Sunnah. Therefore, it is
necessary for ijma to be conducted by a group of ijtihad to deduce rulings for these new issues.

In the matters of conditions implied upon ijma’, Muslim jurists agreed that it can be stipulated
from the classical jurists as per its definition it is possible to achieve at modern times as they were

“THE CONCEPT OF IJMA IN THE MODERN AGE: WITH PARTICULAR REFERENCE TO MUHAMMAD
16

ABDUHS THEORY’. Khoiruddin Nasution. 2008. (http://digilib.uin-suka.ac.id/475/) Accessed on 15/02/2020

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possible to be materialized during the time of the companions. All of the proofs of the authority of
ijma are suitable to be proofs of the feasibility of conducting it at modern times. This is because
the texts of the Quran and Sunnah are not limited to a particular age. Rather they are suitable for
all the ages until the end of the world as stated in surah an-Nisa. Verse 115:

‫يرا‬
ً ‫ص‬ ْ ‫س‬
ِ ‫اءت َم‬ ْ ُ‫سبِي ِل ْال ُمؤْ مِ نِينَ نُ َو ِل ِه َما ت ََولَّى َون‬
َ ‫ص ِل ِه َج َهنَّ َم َو‬ َ ‫سو َل مِ ن بَ ْع ِد َما تَبَيَّنَ لَهُ ْال ُهدَى َويَتَّبِ ْع‬
َ ‫غي َْر‬ ُ ‫الر‬
َّ ‫ق‬ِ ِ‫َو َمن يُشَاق‬

“As for him who sets himself against the Messenger and follows a path other than that of the
believers even after true guidance had become clear to him, We will let him go to the way he has
turned to, and We will cast him into Hell - an evil destination.”17

7.3 Steps To Be Taken For Conducting Ijma At Present

There are five different proposals available regarding on how to conduct a contemporary ijma’.
First, Mustafa al-Zulami maintains that it is the responsibility for the specialist of every field to
conduct ijma in their particular field. Second, al-Zulami with different opinion also maintains that
those who are capable of making tarjih (preference of stronger opinions over the weaker ones) and
those who are capable of istinbat (deducing new rulings) should assemble themselves in either
Makkah or MAdinah during the occasion of Hajj, and discusses the issues and solves them
unanimously. Third, ‘Abduh, Iqbal and some others maintain that the parliament of every country
should do ijma. Fourth, ‘Abd al-Karim Zaydan maintains that it is requires establishing a central
Fiqh Academy to conduct ijma in contemporary period, thus, all jurists capable of doing ijtihad
should be members of this academy. Fifth, ‘Abd al-Wahab Khallaf has the opinion that a central
legislative association (jam’iyyah tashri’iyyah) should be established to conduct ijma, therefore,
all mujtahids must be members of this association. However, the first and third proposals are not
accepted at all, and the last two proposals are greatly similar with no big difference. It should be
noted that many steps to be taken to conduct ijma through this type of academy or association.

Based on Zaydan’s brief idea, he managed to elaborate the steps to be taken in accordance to
conduct ijma at present. This as well includes some other scholars’ idea. Such steps are to be
explained as follows. It is require for the above central academy or association to be independent
from any particular government or political party. On the other hand, the head office of this

17
“POSSIBILITY OF CONDUCTING IJMA’ IN THE CONTEMPORARY WORLD”. Muhammad Amanullah.
2010 (http://irep.iium.edu.my/620/1/Article_on_Ijma%60.pdf) Accessed on 16/02/2020

15
academy or association requires being one that is in neutral country. It is also necessary for all
Muslim governments to participate in financing this academy or organization because the cost
could be so high that it would be a burden to one government. In terms of facilities, it is require
that all modern facilities such as computers, fax machines, telephones, teleconference equipment,
internet, printers and so on to be supplied for this head office. In such office, it is also necessary
to make most of the sources of tafsir, hadith, fiqh, usul al-fiqh and dictionaries both in hard and
soft forms to be abundantly available. The conditions of ijtihad should be determined, thus, there
is an additional one added to classical conditions as to make ijma at present time that mujtahid
should have knowledge of different emerging issues of the contemporary ummah. The emerging
issues that requires ijtihad and ijma should be listed by the specialist of every field, and the most
urgent ones should be selected first to conduct ijtihad and ijma.

Furthermore, mujtahids that do not have enough knowledge to judge issues should consult
specialists of scientific, technical and other fields to get into solutions. The members of this
academy or association should assemble together according to an organized timetable, and that
they have to be aware of the new topics to be discussed before they come into the meeting so that
there is ample time for them to do their own ijtihad at their homes prior to attend this meeting. It
is also conditioned that the proposed topics must be discussed freely during the meeting in order
to know all the different views of judgment and the strongest opinion should be then accepted by
the assembly. The ijma will then be accomplished once the members of the academy or
organization reach an agreement on the ruling of a particular issue. It is then requires for the
decided ruling of ijma to be published through the publishing media of this academy or
organization, this is to ensure that other scholars all over the world is aware of the existence. The
decided ruling of ijma is then should be binding for these mujtahids and all other Muslims all over
the world including all Muslim governments. It should also be noted that if this ruling is based on
a sanad (proof) of the Quran or Sunnah, the subsequence generations will have no authority to
change it. However if it is based on public interest, the ruling can also be changed once the interest
change in times. However, if there are two opinions and they cannot agree upon them i.e the
opinion of the majority and the opinion of the minority, the former opinion still will be binding for
the Muslims. But the mujtahids are also given rights to choose the view of the minority if they feel

16
that it is the most approprioate ruling. But according to majority of the jurists, they are not allowed
to choose a third opinion (not choosing either one of the two opinions).18

As there are issues related to the qualification of Mujtahids and declaration of Ijma’ so in
contemporary Islamic world fatawa are generated based on collective Ijtihad which is considered
a level below Ijma’ and fatwa generated by collective Ijtihad is non-binding and also can be
changed.

There are several modern examples of consensus, such as the consensus of Muslim scholars that
it is forbidden to play the role of the Prophet (blessings and peace of Allah be upon him) or other
Prophets and Messengers of Allah (blessings and peace of Allah be upon them) in movies and TV
shows. This consensus was mentioned by Shaykh Bakr Abu Zayd (may Allah have mercy on him)
when he said: Those scholars who allowed acting within certain guidelines are unanimously agreed
that it – playing certain roles – is prohibited in the case of the Prophets and Messengers of Allah
(blessings and peace of Allah be upon them), and that it is prohibited in the case of the Mothers of
the Believers, the wives of the Prophet (blessings and peace of Allah be upon him) and his
descendants (peace be upon them), and in the case of the Rightly Guided Caliphs (may Allah be
pleased with them).

8 Conclusion

As we can see Ijtihad or its principles is very useful during the period of the Prophet Muhammad
(Saw) and during the modern times where it helps to solve dispute that arose in the society whether
it is in terms of necessity or obligation. Back in the Prophet Muhammad (Saw) era it can be proven
by the hadith of Muadz Bin Jabal where it shows there is the existence of ijtihad whereby in the
modern times it uses the concept of ijtihad to solve disputes such as the existence of supreme court
to solve disputes or in terms of Islamic matter it will be solve by the country’s mufti.

18
Ibid.

17