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Ijma Ijma is defined as the consensus of opinion of the Imam mujtahids among Muslims in a particular time after the

demise of the Prophet of God regarding the legal position of a matter or problem. The scholars agree that Ijma can be used as a basis to determine the legal position of a matter. Authority of Ijma Earlier we have seen the Quranic verses that ordered the Muslims to obey the ulil amr apart from God and the Prophet. As previously mentioned, ulil amr refers to those in authority. Those in authority in worldly matters are kings, leaders, etc and those in authority in religious matters are the scholars i.e. the Mujtahids etc. Ibne Abbas, a companion of the Prophet p.b.u.h., interpreted ulil amr to mean scholars in or around the Holy Prophet Muhammad p.b.u.h.. The are also many ahadith to confirm the authority of Ijma. Some of the hadiths are as follows 1. "Whatever is good in the eyes of the Muslims is also good in the eyes of God." 2. "The majority of my Ummah will not agree on an error." 3. "God will not gather my Ummah upon error (dalalah)." Conditions for Ijma In order for Ijma to be valid, it must meet three conditions. They are: 1. The Ijma must be disregarding any specific country, nationality or group. Therefore if there is Ijma among the mujtahids from Makkah, Madinah, Iraq, Hijaz, the Prophet's family; it cannot be considered as Ijma amongst only the mujtahids. 2. The Ijma among the mujtahids is clearly manifested either through their speech or action, either individually or in a group. 3. The Ijma must include all mujtahids. If the majority of mujtahids agree but there is still a minority of mujtahids who disagree, it cannot be considered Ijma or used as a decisive authority. Qiyas Qiyas means to equate the legal position of a matter that has no ruling from the Quran and the Sunnah to one that has due to the illat (underlying cause or reason) of the ruling. In other words, the mujtahids refer back to the Quran and the Sunnah and use analogical reasoning between a new matter that has no ruling with the one that already has a ruling.

Authority of Qiyas Qiyas derives its authority both from the Quran and the Sunnah. Earlier, we p.b.u.h. that the basis for using the four sources is the following Quranic verse, "O you who believe! Obey Allah Almighty and obey the Prophet (Muhammad P.B.U.H.), and those of you (Muslims) who are in authority. (And) if you differ in anything amongst yourselves, refer it to Allah and His Prophet (P.B.U.H.), if you believe in Allah Almighty and in the Last Day. That is better and more suitable for final determination." 4:59 Allah Almighty ordered the Muslims to refer or revert back to God (through His divine book, the Quran) and His Prophet (through the Sunnah) if there are differences of opinion. This means using analogical reasoning based on the Quran and the Sunnah to decide upon on a new matter. In the Sunnah too, there are numerous examples of Qiyas. Apart from the hadith of Muaz above, the Prophet was once asked by Jariyah Khasmiyah, "O Prophet of Allah, My father is commanded to perform the hajj when he is already old or when he is not able to do so. If I perform on his behalf, is it beneficial to him?" The Prophet answered, "What do you think if your father owes a debt and you pay on his behalf, is that beneficial?" Jariyah answered, "Yes." This shows that the Prophet (p.b.u.h.) used analogy between performing the hajj and the paying of a debt. Tenets of Qiyas The tenets of Qiyas are four: 1. Al-Asl (The Source): The original matter (or source) that has a ruling in the Quran or the Sunnah where the analogy can be referred to. 2. Al Faru (The Branch): Secondary matters that were the practices that can be relied upon. 3. Hukum Asl : The ruling (legal position) of the source. 4. Al illah (underlying cause or reason)

For example the Quran prohibited the drinking of khamar (translation?). The prohibition is due to the intoxicating nature of khamar which is the illah or the underlying reason for the prohibition. Then beer (the target) which is made from barley is also prohibited since it also intoxicates. Conditions for Ijtihad It should be noted that before one can do Ijtihad one needs to fulfil the following conditions : 1. Master the Arabic language 2. Well versed in the asbabun nuzul (reasons for revelation) of the Quran 3. Well versed in the nasakh wa mansukh (abrogating and abrogated)

verses in the Quran 4. Well versed in the knowledge of Sunnah 5. Understand the position of iIjma and khilaf (differences of opinion) 6. Well versed in the techniques of Qiyas 7. Understand the objectives of the Shariah 8. Just and fearful of God Therefore not everyone can be a mujtahid. In this modern world, it is difficult to find persons that match all the above criteria. In addition, the scholars are expected to comprehend the subject at hand (in this case the subject is insurance) before that person is able to make a decisive ruling.

Other Possible Sources We have seen how Imam al-Shafii's system acknowledged four main sources of law: Qur'an, sunna, ijma and qiyas. But what if, having exhausted these four possibilities, you still need another judgement on something new that has arisen, or on some fine detail which seems to clash with another principle adumbrated elsewhere? How does one solve these problems and iron out these ambiguities? 5. The Amal of the People of Madina For Malik there is another source which is as important as these first four - in fact, in many ways it subsumes them - and that is the amal, or "practice", of the people of Madina. (Theijma of the people of Madina referred to above in the section on ijma is a more limited concept in that it refers only to those judgements on which there was general agreement in Madina, whereas the amal of Madina as a whole includes points about which there were sometimes significant differences of opinion among the Madinan ulama.) One could say a lot about this topic, but suffice it here to say that amal is not merely "local custom", as its opponents (both Muslim and non-Muslim) claim, but rather - in its earliest form, at least - a non-textual source of sunna on the level of mutawatir hadiths (i.e. hadiths with multiple, and parallel, chains of authority). That is, it represents a non-textualtransmission of the practice of the Prophet, salla-llahu alayhi wa-sallam, (or, perhaps, one of the Rightly-Guided Caliphs) by many from many, in the same way that mutawatir hadithsrepresent a textual transmission of the practice of the Prophet, salla-llahu alayhi wa-sallam, by many from many. Most hadiths, by contrast, are transmissions by one from one, or, at best, a few from a few, i.e. the khabar al-wahid, pl. akhbar al-ahad, type of hadith. This is the reason for the comment of the famous 2nd-century Madinan scholar, Rabia (d. 136 AH), to the effect that "One thousand from one thousand is preferred by me to one from one; one from one would tear the sunna right out of your hands." "One thousand from one thousand" was the situation in Madina, while "one from one" was the situation everywhere else. This was also the reason why Abu Yusuf, for example, changed his mind about the correct measurements for the mudd and the sa of the Prophet, salla-llahu alayhi wa-sallam, when he saw how the size of these had been preserved physically, from one generation to another, by the people in Madina. Indeed, it is said that Abu Yusuf and alShaybani, the two main founders of the "Hanafi" madhhab after Abu Hanifa, had between them to change fully one third of Abu Hanifa's madhhab after their exposure to the knowledge of the people of Madina. Two examples will give some further idea of the nature of Madinan amal as a source of judgements: (i) We have already referred above to the question of sadl al-yadayn, or doing the prayer with one's hands by one's sides. This was a judgement based on the amal of the people of Madina, with Malik denying the applicability of the hadith-based judgement that one's hands should be clasped in front of one (qabd) when doing obligatory prayers but allowing it for voluntary prayers: "I don't know of this practice [i.e. qabd] as far as obligatory prayers are concerned, but there is no harm in someone doing it in voluntary prayers, if he has been standing for a long time, in order to make it easier for himself."

(ii) In his Mukhtasar, Khalil refers to what is known as the "transaction of the people of Madina (bayat ahl al-Madina)" when he says: "[It is permissible] to buy from someone whose work is continuous, like a baker, and this is [considered] a[n ordinary] sale; if it is not continuous, it is [considered] a pre-payment transaction (salam)." The people of Madina used to buy meat from the butcher's, taking a certain amount day by day, and then pay for it when they had received their stipends, which might be only once a month. This type of transaction thus shares characteristics with the forbidden transaction of a debt for a debt, because it is like a pre-payment transaction (salam) in which the actual transfer of both the money to be paid and the thing being payed for are delayed (e.g. the meat that I will be buying next week I will be paying for in two weeks' time). However, since the butcher's work goes on day by day in the same way, and given that the buyer begins to receive some of what he has arranged to buy straightaway, this transaction is considered as a type of ordinary sale rather than a salam contract, and so it is not a condition that the money be paid first and the thing being paid for be delivered later (as it would be in an ordinarysalam contract). This transaction was something that the people of Madina used to do. In the Utbiyya and other sources there is a report from Malik that Salim ibn Abdallah ibn Umar said: "We used to buy meat from the butcher's at a known price, taking two or three ratls every day and agreeing with them that we would pay them when our stipends came in. I think that this is an acceptable practice (ara dhalika hasanan)." Malik added: "And I see no harm in it, as long as the stipend is regular and payment can be expected at a known time." Ibn Rushd (the Grandfather) says, in his commentary on this report: "The words We used to buy meat from the butcher's at a known price, taking two or three ratls every day and agreeing with them that we would pay them when our stipends came in shows that this was something which was well-known amongst them, so much so that the transaction is known as the transaction of the people of Madina. This was considered acceptable by Malik and his companions, because it was part of the amal of the people of Madina ... even though qiyaswould suggest otherwise." This originally applied to butchers, but was then extended by qiyas to anyone producing food on a daily basis, such as bakers, milk-sellers and cooks. 6. The Opinion of a Companion This principle includes, for example, something which one of the Rightly-Guided Caliphs did and which nobody disagreed with, such as Umar's institution of group tarawih prayers in the mosque in Ramadan. Such a practice then becomes like an authoritative text (nass) because of the Prophet's saying that "You must hold to my sunna and the sunna of the Rightly-Guided Caliphs [after me]." Furthermore, since nobody said gainsaid this judgement, it is like a silent consensus (ijma sukuti). As for the opinions of other Companions who were not caliphs, these are considered authoritative (hujja) by Malik, because he considers the Companions to be followers of the sunnaand not innovators. Furthermore, they may have based their opinion on knowledge of a sunna which others did not know about. Thus in the Muwatta and other early texts we find numerous opinions of the Companions, such as Abdallah ibn Umar and A'isha, may Allah be pleased with them both. 7. Istihsan Istihsan refers to when a "hidden" qiyas (qiyas khafi) is given preference to a "clear" qiyas (qiyas jali), or when a partial exception is made to an otherwise general rule because of some indication elsewhere in the Sharia. An example of this would be the validity of certain types of bequest made by a minor whose money is being held in trust for him (wasiyyat al-mahjur). Under normal circumstances, he is not allowed to use this money as he wants. If, however, he dies having made a bequest regarding his money (i.e. the third that is allowed for bequests), such a bequest is considered valid. Ordinary, "clear" qiyas would suggest that he is not allowed to use any of his money for any purpose. By istihsan, though, his bequest is considered valid, because the point of his being made mahjur is to protect his money and guard him against poverty while he is alive; when he is dead such concerns no longer apply. For this reason it is permissible for a young boy, for example, to make a bequest regarding money of his that is being held in trust for him, assuming this is for a good cause, such as for a mosque, or for the benefit of some of his relatives, etc. 8. al-Masalih al-mursala Masalih is the plural of maslaha, which means "something of benefit". Mursala in this context means, literally, "set free", "unrestricted", i.e. that there is no text either expressly allowing or forbidding the particular matter. In other words, the principle of al-masalih al-mursala refers to matters about which there is no definitive judgement or precedent in the Sharia but which are allowed because of their general benefit to the community, as long as they do not go against an existing judgement.

It is well-known that Malik favours this principle. However, as al-Qarafi notes, one in fact finds it acted upon in all the madhhabs. Indeed, this principle was used extensively by the Companions, particularly the first caliphs. In his Maraqi al-suud, Sidi Abdallah al-Shinqiti (d. c. 1233 AH) notes the following seven examples: (i) Writing down the Qur'an and vocalising the written text. After many of those who knew the Qur'an by heart had been killed during the Wars of the Ridda, Abu Bakr had the Qur'an collected together in a written form. This is considered a maslaha mursala because, in the time of the Prophet, salla-llahu alayhi wa-sallam, the Qur'an was not collected together in a written form. Later, in the middle of the first century AH, people also began to vocalise the text in order to preserve it from corruption. This, too, was a maslaha mursala. (ii) Abu Bakr's appointment of Umar as his successor. Abu Bakr left instructions that Umar should be the caliph after him, although the Prophet, salla-llahu alayhi wa-sallam, had not left any such instructions when he died. Some people say that Abu Bakr only did this to avoid repetition of the confusion at the Saqifa after the Prophet, salla llahu alayhi wa-sallam, had died. However, the preferred view is that he did this because he saw that Umar was the best man for the job. (iii) Demolishing a waqf or other building next to a mosque in order to enlarge the mosque because of an increase in the number of people using it. (iv) Establishing a standard coinage for the Muslims. Umar established standard weights for both gold and silver coins in order to facilitate correct transactions between people. In the time of the Prophet, salla llahu alayhi wa-sallam, the Muslims did not have their own distinctive coinage, but would use whatever coins (and/or unminted gold and silver) were available, measuring them by weight. These coins, however, contained differing amounts - and qualities - of gold and silver. Umar therefore standardised the weight of the dinar (gold) and dirham (silver) such that ten dirhams of silver weighed the same as seven dinars of gold, basing himself on the overall average weight of the coins commonly being used at that time. (v) Adding a second adhan on the Day of Jumua. When the numbers of people coming to the Jumua had begun to increase markedly, Uthman instituted a second adhan to be done before the imam sat down on the minbar so that people could have more time to get ready for the prayer. (vi) Establishing a jail (sijn) as a place of detention for certain well-defined purposes. In the time of the Messenger, salla-llahu alayhi wa-sallam, and Abu Bakr there were no jails; rather people would be detained, for example, by being tied to a pillar in the mosque and kept there until such time as judgement was made about them. Umar, however, bought a house in Makka which he made into a jail. Indeed, Umar is well-known for having jailed the poet al-Hutaya for lampooning the then governor of Madina (although some sources suggest that he was put at the bottom of a well rather than - or perhaps as well as - in a house), as he also jailed abigh ibn Isl, after flogging him a hundred lashes, for his persistent questions about themutashabih verses of the Qur'an. Similarly, Uthman jailed Dabi ibn al-Harith al-Burjumi, after flogging him, for lampooning a group of the Ansar. Later, after he was released, he was caught planning to attack and murder the caliph. Uthman therefore jailed him a second time, and he ended up dying in jail, though after how long is not clear. Ali and Ibn al-Zubayr also used such jails in Kufa and Makka respectively. As mentioned above, the Prophet, salla llahu alayhi wa-sallam, kept people as detainees, but he did not use a building specifically set aside for that purpose. Doing so was therefore a maslaha mursala. What should be made clear at this point, however, is that, although in modern Arabic the word sijn (verbal noun sajn) is commonly used to mean "prison" in modern Arabic, what is being envisaged here is not imprisonment in the modern sense of the word, i.e. what is known by European legal scholars as "punitive detention", or incarceration as a punishment following conviction. For, as Shaykh Abd al-Qadir as-Sufi has clearly summarised the situation, in Islamic shariat there is neither prison nor prison sentence. Justice is done, done publicly, and done immediately. There is no mental torture added to the sentence through delay between sentence and judgement ... In Islam, there is neither prison nor police. Prisoners may be taken in war and kept until re-allocated back into society but there is no possibility of permanent camps ... Rather, what is being envisaged here is closer to what Western legal scholars refer to as "administrative detention", i.e. detention as a form of compulsion (as, for example, in the case of debtors or, in the above examples, abigh ibn Isl, until he retracted his views), and "pre-trial detention", i.e. detention of a suspect before his trial commences. Thus Malik, for example, refers to the possibility of someone being detained for theft and kept in jail (fi sijn) until such time as his case is decided, as he also refers to the possibility of someone being jailed for a year (yusjanu sana) if (a) he has been a direct, but unintentional, accessory to murder by having held someone down while he was being beaten to death, on the understanding that he thought the murderer was only going to beat the victim, not kill him, in which case he should be severely punished and then jailed for a year, or (b) he is guilty of murder but has been pardoned by the murdered man's family, in which case he should be flogged a hundred lashes and then jailed for a year. Both of these latter judgements are arrived at by qiyas with the "banishment" (nafy) of one year which is

imposed in certain cases of fornication after the punishment of flogging has been administered, and which is understood to involve "imprisonment" (sajn) in the place to which the offender is banished. (vii) Compiling official diwans, or registers. Umar was the first to compile an official diwan, or register, of the Muslims and the various amounts that they were entitled to receive as stipends according to how early they had become Muslim and what they had done in the service of Islam. This, again, was something that had not been done in the time of the Messenger of Allah, salla-llahu alayhi wa-sallam. 9. Sadd al-dhara'i Sadd al-dhara'i means, literally, "blocking the means", i.e. to undesirable ends, in other words, forbidding what is likely to lead to the haram. This is thus an extension of the general principle that what leads to the haram is haram, just as what leads to the obligatory is obligatory, and what leads to the permitted is permitted. The basis of this principle is contained in the Qur'an where Allah says: "Do not swear at those who call on other gods than Allah, so that they will then swear at Allah in enmity, without any knowledge. In this way We have made every community's action seem good to them. Then their return will be to their Lord and He will inform them of what they used to do." (Q.6:108). Allah has made it haram for us to swear at the idols of idol-worshippers because, if we do, they will then swear at Allah, and this greater evil needs to be prevented. This is thus also an application of the principle of choosing the lesser of two evils (akhaff aldararayn) (see below). Al-Qarafi says that all the Muslims are agreed that such dharai fall into three sub-categories: (i) those whose prohibition is agreed upon, e.g. digging wells in the paths of the Muslims or swearing at idols (i.e. something that is highly likely to cause harm, although in itself permitted). (ii) those whose permissibility is agreed upon, e.g. cultivating grapes (i.e. something that could lead to what is haram, since grapes are of course essential for the production of wine, but which is more normally used for permitted purposes, i.e., in this case, the production of food). (iii) those about which there is a difference of opinion, such as certain transactions coming under the category of buyu alajal ("deferred sales"), which Malik and the Madinans forbade, although others allowed them. The transactions in question here involve: (a) selling something on credit terms and then buying it back for a lesser amount either paid in cash or on shorter credit terms than the original transaction. An example of this would be if A sells B some goods for 100 dirhams to be paid in a month's time and then buys them back from B for 50 dirhams paid either immediately or, say, in fifteen days' time. B thus effectively gets 50 dirhams now (or in fifteen days' time) for which he must pay back 100 dirhams to A in a month's time, with the goods effectively remaining in the hands of A, the original owner. (b) selling something on credit terms and then buying it back for a larger sum to be paid at a later date than the original credit terms. An example of this would be if A sells B some goods for 100 dirhams to be paid in a month's time and then buys them back from B for 150 dirhams to be paid in two months' time. In this case B is effectively paying 100 dirhams in a month's time to get 150 dirhams in two months' time, with the goods again effectively remaining in the hands of the original owner A. Malik and the Madinans forbade both types of combination because, although as individual transactions they are all permissible, when combined in this fashion they can become a means (dharia) to allowing riba. The important consideration with regard to sadd al-dharai is thus the result of the action, and whether it leads to benefit or harm. Under this principle come certain sub-principles, e.g:

(i) "preventing harm is given preference over gaining benefit". For example, if someone does wudu and is not sure whether he has washed his face three times or only twice, he assumes it is three, because he shouldn't wash it more than three times, whereas washing it twice is acceptable (and recorded as part of the practice of the Prophet, salla-llahu alayhi wa-sallam). (ii) "the lesser of two evils". For example, if some Muslims are being used as a shield by a non-Muslim enemy and the main body of Muslims are certain that, if they do nothing about this, the enemy will get the better of them and end up occupying the territory of the Muslims, then it is permissible to strike the enemy and the Muslims with them. In other words, it is better that some Muslims get killed in order to save the majority of the community than that the whole community is destroyed. (Some people consider this to come under the category of al-masalih al-mursala.) 10. Urf (custom) This principle applies to things such as use of language, food, clothing, etc. One example would be understanding the word dabba ("riding-beast") as used in certain areas to refer to a donkey rather than any other type of animal. In other words, certain words are understood in a certain way in certain areas, which might be different from the "dictionary" definition. In cases involving the interpretation of such words, their customary meaning is taken into account. Another example is the custom in some areas of dividing the dowry into two parts, one of which is paid at the time of the marriage (hall), and the other of which is delayed until later (muajjal). If a case arises in which a wife says she has only received half of her dowry (i.e. not the "delayed" part) and her husband says that he has paid it all, the urf, or customary practice, in such matters is taken into account in arriving at a judgement, and preference given to what is normally understood by the relevant words. A third example is that handing over goods without saying anything can, in certain circumstances, be considered the same as actual words of acceptance as far as buying and selling are concerned.