Al.Jami 'ah, No.

56 Th 1994

THE CONCEPT OF IJMA' IN THE MODERN AGE

With Particular Reference to Muhammad 'Abduh '·s Theory
by : Khoiruddin Nasution

Introduction
The Qur'an and the Sunn a of the Prophet are the main sources of Islamic
jurisprudence, from and through which the Islamic laws are derived. The
Sunni jurists agree that ijma' is the third source of Islamic law after the
Qur'an and the Sunna of the Prophet. 1 Even though some modern scholars,
such as Snouck Hurgronje argues that ijma' as a method and principle rather
than its contents which are regarded as authoritative, not infallible.2
Islamic jurisprudence deals with acts of worship ( 'ibadat), such as
praying, fasting, :zakat etc. As well as with mu 'amalat such legal transaction,
family law, public activity, international commerce, international realtions and
so forth.3
After the death of the Prophet, to whom the Qur'an was revealed and
from whom the Sunna came, Ijma' and ijtihad, became imperative, since it
was only through them that new problems, which the Qur'an and the Sunna of
of the Prophet did not adequately explain could be solved.
Jurists such as Malik, Shafi'i,4 Da'ud al-Zahiri, al-Amidi, 5 al-Ghazali, 6

1Waet"B.Hallaq, "On The Authoritativeness of SuMi Consensus," Jntemational Journal

ofMiddle East Studies, 18 (1986), 427. See also C.G. Weeramantry, Jslamic Jurisprudence: An
International Perspective (London: Macrnillon Press, 1988), 40; N.J. Coulson, A History of
Islamic Law (Edinburgh: The University Press, 1964), 55.
2Snouck Hurgronje, Selected Writings, ed., G.-H. Bousquet and J. Schacht (Leiden: E.J.
Brill, 1957). See also Fazlur Rahman, Islam (New York, Chicago: Holt, Rinehart and Winston,
1966).
3 Ma!;un~ani, "Muslims Decadence," 187. See also Mal;tm~ani, Falsafat al-Tashri' fl
al-Js£iim (Beirut: Dar al-Kashshifli an-Nashr, 1371/1952), 150.
4aI-Shafi'i, Mu~ammad ibn Idris, al-Risalah, ed., Af:imad M~arnmad Shakir (Mi~r:

Mu~t,lfa al-Ba""bi al-l;lalabi, 1358/1940), particularly pp. 471-486. See also al-Shafi'i, a/-Umm,
Vol. VII (AI-Azhar: Maktabat al-Kulliyat al-Azhariyah, 1381/1961).
5al-Amidi, al-lfJkam fl Upil al-A~kam, 2 Vols. (Cairo: Dar al-Kutub al-Khidiwiyah,
1332/1914), particularly vol. I, 280-407.
6aI-Ghazali, al-Mustaffe min 'Jim al-U~ul, 2 Vols. (Baghdad: Maktabat al-MuthaMa,
1970), particularly vol. 2 173-181.

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 The Concept ofljma' In The Modern Age

and others have all discussed the concept of ijma' in detail. The problem,
however, is that their ideas are no longer applicable in modern times, given
the tremendous changes in all spheres of life that have taken place since their
day. The dynamics of modem society are entirely different. Consequently, it is
necessary to detennine the form which the concept of ijma', should take in
modem times in order to answer and solve the current problems which
confront Muslim society. This reform can be achieved by reexamining and
reinteipreting medieval legal theory in accordance with the needs of the
present time and environment and in the spirit of the Qur'an and the Sunna of
the Prophet.7
Mu~d 'Abduh (1849-1905) 8 was one of those who concerned
themselves with legal reform. Even though he did not write on Islamic legal
theory as such, his method of interpreting the Qur'an in his monumental
Tafslr al-Manor, which was edited by Rashid Ri~a, and his concern to resolve
the legal and other problems of his time, have a direct bearing on the question
of refom1 in Islamic legal theory.

This paper will attemp to analyze 'Abduh's methodological approach in

Islamic jurisprudence, with particular reference to the concept of ijma'. In
order to place 'Abduh's views in perspective, it will be necessary to descrive
the views of the Islamic modernists, such as MuI:iammad Iqbal, Kemal A.
Faruki, Fazlur Rallman and others.
The paper will be divided into three sections. The first section will deal
with the definition and the institution of ijma' . the second section will treat
tl1e bases of ijma ', and the tltird comprises the conclusion.

7 I;Iasan al-Turabi, Tajdid Ufzil a/-Fiqh al-Islam (Beirut: Dar al-Fikr, 1980), 7. See also

Sub?i MaJ:un~ani, Falsafat al-Tashri' Fi al-Islam (Beirut: Dar alKashshaf Ii an-Nashr,

1371/1952), particularly: 151-166, in which MaI:tm~ani cites the necessity of changing rules and
interpretation according to the changing detnands of society and its circumstances.
8 This birth date was accepted by the friends and followers ofMu?ammad 'Abduh, since in

the magazine, al-f?iya, his birth date was given as 1842. For the most extensive record of
information on 'Abduh's life and work see Rashid Ricja, Tiirikh al-Ustadh al-Imam ash-Shaikh
Mu~ammad 'Abduh, 3 vols. (Cairo: Dar al-Manar, 1931). See also Charles C. Adams, Islam and
Modernism in Egypt : A ·study of the Modern Reform Movement Inaugurated by Mu~ammad
'Abduh (London: Oxford University Press, 1933); Adams, "MU?arnmad 'Abduh the Reformer,"
The Muslim World, 19 (1929): 264-273; Mahmudul Haq, Mu~ammad 'Abduh : A Study of a
Modern Thinker of Egypt (Caalcutta: The Little Flower Press, 1970); Malcom H. Kerr, Islamic
Reform : The Political and Legal Theories ofMu~ammad 'Abduh and Rashld Ri<fa (Los Angles:
University of California Press, 1966), I 04; Albert Hourani, Arabic Thought in the Liberal Age
(Cambridge: Cambridge University Press, 1962), particularly: 130-160.

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Al-Jami 'ah. No. 56 Th 1994

A. The Definition and the Institution of Ijma'

'Abduh defines ijma • as the consensus of the entire Muslim community
in a particular generation. The community as a whole is represented by the ulii
al-amr (men in authority) in the broader sense of the term, since gathering the
entire community is not practically possible. The ulii al-amr 's agreement will
serve as the agreement of the whole community. This agreement will be
obeyed by the community as a whole, on account of public interest (ma~/a/Ja),
and not because of the infallibility of such an agreement. This public interest
.can be different in different places, times and environments.9
That this agreement of the ulii al-amr is the ijma • of the entire
community is according to 'Abduh, supported by the Qur'an 4:59 and 4:83.
'Abduh criticizes and refutes the generally accepted jurists' definition of ijma •
as the agreement of jurists in a particular generation after the death of the
Prophet. But Fazlur Rahman defines ijma • as being co-extensive with the
Sunna after the time of the Prophet. viz., the Sunna of the Prophet himself and
the interpretation of it, 10 or as the ijtihad of the 'Ulama' and the ruling of
political authorities in their day-to-day administration. 11
According to 'Abduh, the medieval jurists definitions' were not
conversant with the socio-political interests of the community, such as
problems of peace and war, finance, administration and so forth. 12
He ex-plains further that, literally, ijma' means "putting the things
together, determining upon an affair, and resolving or deciding upon a
matter,". For example ajma 'a a/-amr wa a/-ra '.Y means that a thing or opinion
is composed and settled, which had earlier been unsettled, or an affair is
determined, resolved or decided so as to make it formally settled. 13 Such a

9Mu~ammad 'Abduh, Tafsir al-Manor, Ed., Rashid Ri~a, 2nd ed., 1367 A.H., vol. 5,

208-209. See Ahmad Hasan, The Doctrine qf ljma' in }slam (Islamabad: Islamic Research
Institute, 1978), particularly, 226-258.
1°Fazlur Rahman, Jslamic Methodology in History (Karachi: Central Institute of Islamic
Research, 1965), 6.
11 Ibid, 30.
12'Abduh, al-Manor, 205. See also Faruki, ljma' and the Gate of ljtihad (Karachi:
Pakistan Herald Press, 1954), 27, in which he states that many aspects of ijma •, , as formulated by
the classical jurists, are still questionable; 'Ali 'Abd al-Riziq, al-ljma'fi al-Shari'ah al-lslamiyah
(Misr: Dar al-Fikr, 1946).
13See also lbn al-Mandhur, Lisan al-'Arab (Beirut: Dar
~adir, 1375/1956), vol.8, 57-58.
See also Mu~ammad Shawkani, lrshad al-Fuliiil ila TalJqiq al-Ffaqq min 'llm al-U{iil (Misr:
Mu~¥lla al-Babi al-1:lalabi, 1364/1937), I st ed., 71.

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 The Concept ofljma' In The Modern Age

determined and settled decision is reached after mature thought and reflection,
and close study in shura. 14
Shawkani defines ijma' into two kinds. First of all, it means "settled,"
for example, fa ajma 'u amrakum means settle your matter. The second
meaning "of being composed," for example, Iii ~iyama Ii man Jamyajma'a a/-
fiyama min a/-lay/i. But the second meaning also returns to the first meaning
since "composed" means settled. 15
'Abduh also notes that a certain point can be reached by the opinion of a
single person body. To support this idea, he cites some verses from the
Qur'an; e.g., Q.10: 71, Q.12: 15, Q.12: 102, Q.20: 64, and a number of
instances from the Sunna of the Prophet. 'Abduh argues that the word ijma'
occurring in these statements does not mean the agreement of the jurists, but
carries its non technical meaning, firm determination on a matter. He quotes
the example of 'Umar who derived rules from the Qur'an and the Sunna of the
Prophet, and if they could not be found there, he derives them through ijma'
or from the rightous people (salihun). Moreover, in the early period of Islam
there were thousands of mujtahids. 16
Faruki does not define ijma' e>..-plicitly, but from his discussion it can be
concluded that ijma' according to him is the agreement of the competent
people, viz., people who have both religious and secular knowledge. For a
comparative knowledge and value, he even suggests to work together with
people from different religions and ideology. 17
The word ulu al-amr in verse 4: 59 was interpreted by 'Abduh in a
wider context. Ulu al-amr according to him designates well-known people in
every nation, every town and every tribe. This view is also supported by the
form of the word ulu al-amr in this verse, which is in the plural and which
indicates a number af ulu a/-amr. These ulu al-amr should be well-known in
the community. 18 They are all the men on whom people's reliance is put in
respect of their religious and temporal matters because of their wider
knowledge and sound opinion. To support this opinion, 'Abduh quotes a fact
from the lifetime of the Prophet. He states that in the lifetime of Prophet, there
was a body of people in Medina whom people consulted in the matters of

14 'Abduh, al-Mariar, 207.

15Shawkan1, Irshad, 71.
16 'Abduh, al-Mariar, 207-208.
17Faruki, ljma', 19-20.
18 ' Abduh, al-Manar, 200.

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Al-Jami 'ah, No. 56 Th 1994

taking an oath of allegiance (bay'a), in shura, and in political, administrative

and judicial events. 19 But 'Abduh does not mention, however, whether or not
the appointment of Abu Bakr as the first caliph was also an act of ijma ', as
claimed by the majority jurists. 20
Ijma' is achieved after the exercise of ijtihad. A mistake in conducting
ijtihad cannot be taken as a straying from the right path and truth (<falala). In
performing ijtihad, a mujtahid might be right or wrong. His mistake in ijtihad
is equal to the mistake of a person who misses the right direction of prnyer
despite his best effort.2 1
'Abduh considers that nowadays fonn of ijma' should be an institution
which consists of experts from many different disciplines and through which
people's problems can be overcome.

Mu}:tammad Iqbal and Faruki are two Islamic scholars who support
'Abduh's idea. According to Iqbal, the only possible fonn of ijma' in modem
time is that the transfer of the power of ijtihad to a Muslim legislative
assembly. Thereby, ijma' will also secure contributions from laymen who
posses insight into affairs. A difficulty will arise, however, as regards an
assembly which includes non-Muslims too, for such an assembly can hardly
exercise ijtihad. 22 Faruki states that there are two possible ways to operate
ijma', namely, through legislation and by judicial precedent. If the principle of
ijma' can operate better through legislation than through judicial precedent,
then, legislation, becomes the more Islamic method. 23 The most important
thing, however, is the existence of an institution, whatever its nature, through
which ijma' can be achieved.
To ensure the proper functioning of the assembly, which is to serve as
the instrument of ijma ', it should according to Iqbal, be representative of both
the elite and the 'U/ama'. The 'Ulama' should take part in the assembly for
guidance on matters relating to religious matters. In addition, in order to avoid
a misinterpretation of the main sources of Islamic law the Qur'an and the
Sunna of the Prophet, adequate steps should be taken, e.g. ·rebuilding the

19Ibid, 195.
20 see
for example, al-Amidi, al-I~kam ft U{iil al-A~kam, 4 Vols. (Mi~r: Dar al-Kutub
al-Khidiwiyah, 1332/1914).
21 'Abduh, al-Mariii.r, 209.
22 Mul;iammad Iqbal, The Reconstruction of Religious Thought in Islam (Lahore: Shaikh
l\fo~ammad Ashraf Press, 1951), 174.
23 F aruki, l1ma ', 25.

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 The Concept ofljmi' In The Modern Age

system of the legal education in Muslim countries so that its sphere is

broadened and it is combined with the intelligent study of modem
jurisprudence. 24
In contrast, some other scholars are opposed to the idea that ijma' can
work through a legislative assembly. Dr. S.M.Musa, for example, has three
objections to this idea. First of all, the number of mujtahids are
indeterminable; it is bound different from time to time and place to place in
accordance with the nature and extent of education and culture. Secondly, the
qualities of the mujtahids are not won through a counting of votes or the
award of a certain certificate. Rather, a mujtahid is recognized by the people
through his personal qualities as revealed during a whole lifetime and not on
the eve of a hectic election campaign Thirdly, the process of ijma' is slow,
sometimes very slow -- it must take a generation or even more and nobody
can set the pace for it. When the mujtahids give their opinions on a certain
point, it passes through the process of conflict and survival of the fittest. It is
immeasurable in mathematical terms. Consequently, Musa doubts the
usefulness of a legislative assembly for ijma', and he is skeptical if this
assembly will have the best representatives from the community.
Achievement of ijma' really takes a long time, since once ijma' is achieved
there remains no dissident minority waiting for its tum to impose its own
point of view. That is probably why there have been very few instances of the
later generations going back upon the ijma' of a previous generation. He
concludes, therefore, that theoretically the possibility of ~·ma' through a
legislative assembly does exist, but practically it is redundant. 5
Musa also notes that during the early centuries of Islam, Islamic culture
and civilization reached their zenith. The corpus of Islamic law developed to
the e"-tent that it could cater to all the needs of family life, public activity, a
highly developed industry, crafts, international commerce, international
relations and so forth. The law became static because the society in the
medieval times was itself static. It was not moving as rapidly as in our time.
This era was one of decline, both for the Muslims as well as for non-Muslims.
The Muslims then were more aware of their needs than the Muslims of
today. 26 Musa does support the necessity of ijtihad to meet new challenges,

24 Iqbal. The Reconstruction, 176.

25S. M. Musa, Studies in Islamic History and Culture (Lahore: Institute of Islamic Culture,
1970), 212-213.
26 Ibid .• 214.

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Al-Jami 'ah. Xo. 56 Th 1994

but does not agree with the kind of ijma' proposed by Iqbal. Another reason
he has to disagree with Iqbal is that the latter propose seems to be the
involvement of layment in ijtihad. According to Musa, a layman has no right
to conduct such ijtihad. Rather, ijtihad in Islam has to be based on the spirit of
the Qur'an and the Sunna of the Prophet, and only the scholars ( 'Ulama) are
competent to undertake it. 27
As for the relationship between caliph and ah/ al-lJall wal- 'aqd, 'Abduh
does not describe directly. He just states that cooperation is necessary because
the isolated individual is weak and shortsighted even in discerning his own
best interest, let alone in those of the group. Consequently the extent of the
consultation necessary is commensurate with one's responsibilities and
authority. 28
According to Rashid RicJa, khilafa, imama 'uzma and imarat a/-
mu 'minln are three terms with the same meaning. They signify the leadership
of Islamic government combining the interest of religion and worldly life. As
Fakhr al-Din ar-Razi (d.1209 AD.) stipulated, Ri9a argues that the office
must be confided to a single individual as "a safeguard for the entire
community in case they should have to remove the imam for evildoing," since
without the caliph the law cannot be enforced nor the welfare of the
community protected. 29 The ah/ al-l;a/1 wal- 'aqd must posses effective
influence in the community so that their decision will be assured of
enforcement; and that the ah/ al-lJall wal- 'aqd are the final authority, speaking
for the full body ofbelievers.30
The ah/ al-l;a/1 wal- 'aqd have replaced the caliph as the human agency
whose function to determine the matters from religion and temporal
considerations, and the caliph has become their executive officer. But if ah/
al-1;,all wal- 'aqd should meet and pass other decisions opposed to the ruler's
policy, these are binding on him, since they are the deputy of the community
(umma) and it is they who have the right to select the caliph31

21/bid., 21'-216.
28KerT, /1lamic Reform, 137.
29/bid., 159.
38Ibid., 16 I.
31 /bid., 164-165.

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 The Concept of/fmi' In The Modern Age

B. The Bases ofljma'

With regard to the bases of ijma', 'Abduh invokes Q.4: 59 and Q.4: 83,
which enjoin obedience to the men in authority. As against early jurists, he
rejects the use Q.4: 115 because this verse, according to him, does not relate to
ijma'. 32 In explaining this verse, 'Abduh divide into ten parts, none of which
deals with ijma'. 33 He also denies the relevance of the well known tradition
"my community will not agree in an error," 'Abduh maintains that this
tradition does not speak of ijma' at all. 34 Concerning with Q.2: 143 and Q.22:
78, according to 'Abduh, is a call to be a witness with the qualification of
justice ('ad[), not relating to ijma'. 35
"Jama 'ah" means ah/ al-lJall wal- 'aqd in every generation 36 But,
according to Kirmani, those experts in various fields of knowledge
(ah/-al- 'ilm), and who are just (ta 'di[), are similar to ah/ al-lJall wa- 'aqd.
Those on whom people place reliance in their affairs are not merely those who
are just, as argued by the earlier jurists.37
Shawkani also bases his ijma' on Q.4: 59, while simultaneously he
disputing Q.4: 115 as a basis of ijma' for two main reasons. The firs reason is
that the word ghaira sabU al-mu 'minln here, according to him, means
unbelievers, since this verse was revealed (maul) to men who were apostates
(murtad). This verse does not speak of sabll al-~alilJln. The second reason is
that the word sabll here is IJaqlqat, and means way/street used for walking not
agreement (ittifaqlijma ). 38
The term ulii a/-amr is sometimes constructed to mean kings and
despots. But it should bo noted that the verse was revealed during the time of
the Prophet when no kings and despots existed in Islam. It implies, therefore,
that this verse indicates the necessity of a body of such people in a particular
community who posses acumen in social and political events, and are

32 'Abduh, al-Manor, 417. As a comparison to the classical jurists' bases, see Wael B.

Hallaq, "On the Authoritativeness of Sunni Consensus," International Journal of Middle Ease
Studies, 18 (1986): 427-454; George F. Hourani, "The Basis of Authority of Consensus in Sunni
Islam," Studio /slamica, 21 (1964): 13-60.
33/bid., 410-416.
34/bid., 20 I.
35Ibid., 213-214.
36 /bid., 213-214.
31/bid., 214.
38Shawkini, Jrshad al-Fu~ul, 7S.

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Al-Jam, 'ah, Xo. 56 Th 1994

competent to derive rules from the Qur'an and the Sunn a of the Prophet. This
body was known in early Islam as ah/ a/-shura and ah/ al-!Jall wal- 'aqd. The
term of ah/ al-amr (ulu al-amr)actually designates the experts of the umma 's
affairs, law as well as public interest. 39 This terminology is probably similar
to M~~ani's terminology, who states that scholars ('Ulama') were experts
in all departments of ancient knowledge. 40
Historically, in the period of the Rashidiin caliphate, for example, and
particularly under the first two caliphs, the ulu al-amr were the leaders of the
community (ru 'us an-nas), and scholars (ah/ al- 'ilm), both experts in religious
matters and mu 'amalat, 41 and they decided everything on the basis of public
interest, equity andjustice.
In the Umayyad period, however, the interest of the ulu al-amr became
confined to the interests of a particular family/clan, viz., the Umayyads. In the
Abbasid period, the community was represented mostly by the non-Arabs
( 'ajam), particularly from Persia The result, therefore, was not obedience to
God and the Prophet as happened in the era of the Rashidiin caliphate, but the
promotion of a particular community's interests. 42
With necessary changes in the form of this body, the institution of ulu
al-amr can be made to work according to the changing demands of social life
and circumstances. The men in authority (ulu al-amr) in modem times are the
eminent (religious) scholars, army commanders, tradesman, peasants, people
working in the public service departments, directors of the companies and
societies, leaders of political parties, celebrated writers, physicians, advocates,
managers and editors of dignified journals. In short, people in whom the
community lays its confidence in important events, and consults them about
the problems of daily life. 43 If this people have already had an agreement
concerning a matter, this agreement should be obeyed by all Muslims as long
as all of those representatives are from Muslims, and this agreement is in
accordance with the Qur'an and the Sunna of the Prophet. This agreement

39 'Abduh, al-Manor, vol. 3, 11-12. See also Muhammad Nazeer Ka Ka Khen, "The
Conceptual and Institutional Development of Shura in Early Islam," Islamic Studies, 19 (1980):
271- 282.
46Mal)m~i, "Muslim Decadence," 187.
41 " Abduh,al-Manor, 197. See also Muhammad Y. Faruqi, "The Development of ljma' :
The Practices of the Khulafii al Rashidiin and the Views of the Classical Fuqaha," The American
Journal ofIslamic Sciences, 9:2 (Summer 1992): 173-187.
42Ibid., 198.
43/bid., 199. See also Kerr, Islamic Reform, 162.

100
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. ....
; .... 1;\ ,, .
. ,.,.
Al-Jami 'ah, No. 56 Th 1994

According to 'Abduh the way Abu Bakr overcome problems which

faced the community was by seeking guidance from the Qur'an, and if he
could not find the answer in the Qur'an, by having recourse to the Sunna of
the Prophet. If he still failed to solve the problem at hand, he asked the leaders
of the community (ra 'ls al-Muslimln) and scholars ( 'Ulama) to discuss
(shiira). 50 'Umar also followed the same way. The difference was that 'Umar
tried to find precedents in Abu Bakr' s decisions, before asking the 'Ulama'
and leaders of Muslims to discuss the matter. Unfortunately history does not
tell us what Abu Bakr and 'Umar did in such matters where there was no
agreement. 51
Faruki discusses the concept of 'protection from error' on which
generally jurists based their ijma'. He cites three verses of the Qur'an Q.6: 59,
Q.20: 110, Q.31: 34. to show the Omniscience and Omnipresence of God and
simultaneously the weakness of human beings. The first verse deals with the
limits of knowledge in terms of time, while the second deals equally with to
both time and space. There is also, particularly in the third verse, a reference
to the limits to knowledge both in extension and in intention. 52

Faruki concludes that;

Here then is the border or limits of the knowledge of anything or anyone other than
God-- including the consensus of the community -- on the one side and the
Omniscient Infallibility of God on the other. It is fact that God is Omnipresent than
other things and persons -- including the community -- are limited in their
'presence'. Thus the 'protection from error' which is deduced from the Quranic
verse and the J;iadith is limited to the limited 'presence' of the Community, whether
this is evaluated in terms of time or space, extensionally or intentionally. Thus as
the limit of the Community's presence alter, the legal deduction made from the
Quran and Sunna must be re-examined and if necessary altered by fresh processes
of ijtihad, if the Community is to continue to enjoy God's assurance of 'protection
from error. 53

In a clearer explanation, Faruki identifies a pure (infallible) ijma'

with shirk. He notes :
In earlier times, shirk took other fonns such as the worship of graven images by
people when they knew full well of a Higher Power than the store figures. Later,

50 !bid., I 95.
51 !bid., 196.
52 Faruki,
ljma', 15. See also Kemal A. Faruki, Islamic Jurisprudence (Karachi: Pakistan
Publication House, I 962), I 54- I 56.
53 Ibid., I 6.

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 The Conceptofljma' In The Modern Age

there crone the shirk of worship of human beings in similar manner, and to this
day, the shh* of worship of one's particular tribe or nation exists. Yet, an identical
risk of shirk arises in the case of concepts and institutions. If, to the concept of
ijma ', we ascribe an infallibility unbounded by any limits, temporal or spatial,
which necessarily implies omniscience, and therefore, logically omnipotence,
assuredly a "rival to Allah" has been set up. 54

In other words, to ensure 'protection from error' people have to alter

previous ijma' with fresh ijtihad and come to fresh ijma' on the same
problem, if necessary. There is no obligation to follow the previous ijma · if it
is not acceptable because of different in time or place.
Therefore, as regards the status of the ijma' of the Companions, and
whether it is binding on the later generations, Faruki does not expresses a
direct point of view. He only states that both the past and the present ijma' are
protected from error within the resrctive time, space contex1 of each, and
indeed it is limited by each contex1. 5 ·

Iqbal argues that the ijma' of the Companions is binding in some but
not in all. He distinguishes between the ijma' related to points of fact and that
related to points of law. The binding character of the former should be
recognized, since the only people who passes knowledge on such things as
whether or not the two small suras known as 'ma 'iizatayn ' formed part of the
Qur'an, are the Companions. But it is not binding in points of law because
such matters involve and competent people of all times can interpret things for
themselves. Iqbal supports this point by citing Kark.hi, according to whom,
"The Sunna of the Companions is binding in matters which cannot be cleared
up by Qiyas, but it is not so in matters which can be established by Qiyas. 56

C. Conclusion
In short, what 'Abduh attempted to do is to build a workable institution
of ijma'. He hopes this institution can produce Islamic law as an answer to
new problems which appear in society. This institution, of course, only
attempts to overcome the community's problems in the mu 'amatat matters
and not in 'Jbadat. Through this institution, a particular problem can be

54 Faruki, Islamic Jurisprudence, 73.

55/bid., 157.

561qbal, The Reconstruction, 175.

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 Al-Jami 'ah, No. 56 Th 1994

understood from different angles, for a particular matter cannot be judged

according to religious teachings before understanding it properly. 57
Another purpose of 'Abduh effort is to give this institution of ijma' the
power to be obeyed or followed by the people, and at the same time to be used
as a standard to judge a matter.
Similarly, Ri4a also attempts to institutionalize ijma'. He, therefore,
proposes to combine the electors (ah/ al-lJall wa/;.. 'aqd), the participants in the
process of consultation (shura), the persons of authority (ulu a/-amr) and the
mujtahids all members of a single body in which the sovereign powers of the
community lie and whose executive the caliph is. 58
What has been attempted by 'Abduh, I believe, is something which takes
account of the dynamic of changing society. He has attempted to make law
responsive to the changing needs, purposes and interests of society. This is in
, accordance with the ideas of such legal theorists (U~uliyln), as the Shafi'ite
'Izz- al-Din ibn 'Abd al-Salam, the I;lanbalite Ibn Qayyim al-Jawziyya59 and
the Malikite Abu Isl)aq al-Shatibi, 60 all of whom agreed that legal rules are
based on causes and purposes which are founded on the interest of human
beings in this life and the hereafter."
Consequently, all rules, even those based on legal texts, should cease to
apply when the effective causes on which they are based and which provide
their raison d'etre, no more exist. This is in accordance with the original
principle that the legal rule based on an effective cause depends for its
existence on the existence of its effective cause.61 As a causes and purposes.
Therefore, it is undeniable that laws change according to change in time, place

57Compare 'Abduh's concept with the classical jurists'. See for examples, al-Shafi'~

Mul}ammad ibn Idris, al-Risalah, ed., Al]mad Mul}ammad Shakir (Mifr: Mu~afa al-Ba7>1
al-ijalabi, 1358/1940), particularly: 471-486. See also al-Shifi'1, al-Umm, Vol. VII (AI-Azhar:
Maktabat al-Kulliyit al-Azhariyah, 1381/1961); al-Amid1, al-llJkom ft Ulul al-A~kom, 2 Vols.
(Cairo: Dar al-Kutub al-Khidiwiyah, 1332/1914), particularly vol. I, 280-407; al-GhazaH,
al-Musta1fa min 'Jim al-U~iil, 2 vols. (Baghdad: Maktabat al-Muthanni, 1970), particularly vol.
2, 173-181.
58Kerr, Islamic Reform, 197. See also Kerr, "Rashid Ricji and Islamic Legal Reform : an
Ideological Analysis," The Muslim World, 50 (1960), 170. His long explanation concerning the
relationship between caliph and ahl al-lJall wal- 'aqd is in his book al-khil'a,fa aw al-lmamat
al- 'Uzma. Unfortunately, this book cannot be found in Islamic Studies library, Montreal when the
author was doing this research.
591bn Qayyim al-Jawziyya, /'lam al-Muwaqqi'in 'an Rabb al- 'Alamin (Mi~r: al-Maktabat
al-Tijiiriyat al-Kubri, 1955), 4 vols.
60Abii 1,haq al-Shiitibi, al-Muw'a,faqat (Mi!r: al-Maktabat al-Tijiiriyat, n.d.). 4 vols.
61 Mal}ln~ni, "Muslim Decadence," 198.

104
 The Concept ofljma' In The Modern Age

and conditions.
An example regarding this general rule is caliph 'Umar ibn al-lQlattao's
abolition of the share of alms allotted by the Prophet to those whom he wanted
to win for Islam. By giving them a share of alms, he sought to strengthen their
evil, or profit by their great reputation among the people. This was in
accordance with Q.9: 60. 'Umar based his action on the cessation of the
effective cause that constituted the raison d'etre of the Qur'anic text, namely
the need to promote Islam at its beginning. For in the days of 'Umar this
effective caused to be relevant given that Islam had become powerfuI.62
Another example is the decision of Abu Yusuf,63 chief justice of
Baghdad, regarding his decision that barley and wheat should be considered
among the commodities measurable by weight. He took this decision in
compliance with the usual custom in his days and in violation of the Prophet's
saying which considered barley and wheat as commodities to be dealt with by
measures of capacity, in accordance with the custom that was prevalent during
the time of Prophet.64

From these examples it appears that legal opinion can change according
to the change of effective causes or of the custom on which they were based.
Thus the interpretation of many texts concerning legal transactions has
undergone a change, together with mai legal views and opinions as a result
of changes in social interests and needs. 5
That the spirit of Islamic jurisprudence is flexible and progressive is
exemplified in the work of several caliphs and jurists. These include the two
caliphs 'Umar ibn al-K.hattab66 and 'Umar ibn 'Abd. al-'Aziz, an jurists such
as the l;lanafite Abu Yusuf, the Malikite Shams al-Din al-Qariifi67 and the
l;{anbalite Najm al-Din al-Tiifi.68

62/bid.
63See Abii Yusuf Ya 'qiif, Ki tab al-K;harTqj (Beirut: Dar al-Shuri'iq, 1405/1985).
64/bid.

"Faruki,ljma·, 24.
66See for example MIJl:iammad Rawis Qala'aj~ ed. al-Mawiii'at Fiqh 'Umar ibn
al-K_hauab 4th. edn. (Beirut: Dir an-Nafiis, 1409/1989), also MIJl:iammad Yusuf Guraya,
"Judicial System Under 'Umar the Great," Islamic culture, 58 (1984).
67Shams al-Din al-Qarafi, Shar~ Tanqi~ al-Fufiil ft lkhti1ar al-MalJ!iil ft al-U1iil (Cairo:
Maktabat al-Kulliyit al- Azhariyah, 1393/1973).
68N'ajm al-Din al-Tufi, Shar~ Mukht(lfar al-Rawi/ah (Beirut: Mu 'assasah al-Risiila, 1991 ).

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A/-jami 'ah, No. 56 Th 1994

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