Ijma in Modern Islam
By: Muhammad Iqbal
(The Reconstruction of Religious Thought in Islam)
The third source of Muhammadan Law is Ijma which is, in my opinion, perhaps the most important legal notion in Islam. It is, however, strange that this important notion, while invoking great academic discussions in early Islam, remained practically a mere idea, and rarely assumed the form of a permanent institution in any Muhammadan country. Possibly its transformation into a permanent legislative institution was contrary to the political interests of the kind of absolute monarchy that grew up in Islam immediately after the fourth Caliph. It was, I think, favorable to the interest of the Umayyad and the Abbasids Caliphs to leave the power of Ijtihad to individual Mujtahids rather than encourage the formation of a permanent assembly which might become too powerful for them. It is, however, extremely satisfactory to note that the pressure of new world-forces and the political experience of European nations are impressing on the mind of modern Islam the value and the possibilities of the idea of Ijma. The growth of republican spirit and the gradual formation of legislative assemblies in Muslim lands constitute a great step in advance. The transfer of the power of Ijtihad from individual representatives of schools to a Muslim legislative assembly which, in view of the growth of opposing sects, is the only possible form Ijma can take in modern times will secure contributions to legal discussion from laymen who happen to possess a keen insight into affairs. In this way alone can we stir into activity the dormant spirit of life in our legal system, and give it an evolutionary outlook. In India, however, difficulties are likely to arise for it is doubtful whether a non-Muslim legislative assembly can exercise the power of Ijtihad.
But there are one or two questions which must be raised and answer in regard to Ijma. Can the Ijma repeal the Quran? It is unnecessary to raise this question before a Muslim audience, but I consider it necessary to do so in view of a very misleading statement by a European critic in a book called Mohammedan Theories of finance—-published by the Columbia University. The author of this book says, without citing any authority that according to some Hanafi and Mutazilah writers the Ijma can repeal the Quran. There is not the slightest justification for such a statement in the legal literature of Islam. Not even a tradition of the Prophet can have any such effect. It seems to me that the author is misled by the word Naskh in the writing of our early doctors to whom as Imam Shatibi points out in Al-Muwafiqat, vol iii, p. 65, this word, when used in discussions relating to the Ijma of the companions, meant only the power to extend or limit the application of Quranic rule of law, and not the power to repeal or supersede it by another rule of law. And even in the exercise of this power the legal theory, as Amidi—-a Shafi’ doctor of law who died about the middle of the seventh century, and whose work is recently published in Egypt—–tells us, is that the companions must have been in possession of Sari’ah value (Hukm) entitling them to such a limitation or extension.
But supposing the companions have unanimously decided a certain point, the further question is whether later generations are bound by their decision. Shaukani has fully discussed this point, and cited the views held by writers belonging to different schools. I think it is necessary in this connexion to discriminate between a decision relating to a question of fact and the one relating to a question of law. In the former case, as for instance, when the question arose whether the two small Surahs known as Mu’awwidhatan formed part of the Quran or not, and the companions unanimously decided that they did, we are bound by their decision, obviously because the companions alone were in a position to know the fact. In the later case the question is one of interpretation only, and I venture to think, on the authority of Karkhi, that later generations are not bound by the decision of the companions. Says Karakhi: ‘The Sunnah 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.
Once more question may be asked as to the legislative activity of a modern Muslim assembly which must consist, at least for the present mostly of men possessing no knowledge of the subtleties of Muhammadan Law. Such an assembly may make grave mistakes in their interpretation of law. How can we exclude or at least reduce the possibilities of erroneous interpretation? The Persian constitution of 1906 provided a separate ecclesiastical committee of Ulema—–conversant with the affairs of the world’—-having power to supervise the legislative activity of the Mejliss. This, in my opinion, dangerous arrangement is probably necessary in view of the Persian constitutional theory. According to that theory, I believe, the king is a mere custodian of the realm which really belongs to the Absent Imam. The Ulema, as representatives of the Imam, consider themselves entitled to supervise the whole life of the community, though I fail to understand how, in the absence of an apostolic succession, they establish their claim to represent the Imam. But whatever may be the Persian constitutional theory, the arrangement is not free from danger, and may be tried, if at all only as a temporary measure in Sunni countries. The Ulema should form a vital part of Muslim legislative assembly helping and guiding free discussion on questions relating to law. The only effective remedy for the possibilities of erroneous interpretations is to reform the present system of legal education in Muhammadan countries, to extend its sphere, and to combine it with an intelligent study of modern jurisprudence.