Ijma and Qiyas

Consensus of Jurists • Analogical Deduction • Ijtihad • Taqlid • Modern Applications

PART A — IJMA (Consensus of Jurists)

1. Meaning and Basis

'Ijma' (Arabic: إِجْمَاع) literally means 'agreement', 'consensus' or 'collective resolve'. Juristically, it signifies the agreement of the Muslim mujtahidun (qualified jurists) of any particular age upon a question of law. It operates where the Quran and Sunnah are silent or ambiguous, and serves as the chief mechanism by which Islamic law has evolved to meet new situations in each generation after the Prophet.

The classical basis for Ijma is the Hadith: "My community will never agree in error" (la tajtami'u ummati 'ala dalalatin). This is supplemented by Quranic verses enjoining mutual consultation (Sura Shura 42:38) and commanding believers to follow 'the path of the believers' (Sura Nisa 4:115). Together these provide the textual foundation for treating collective juristic consensus as binding.

2. Essentials of a Valid Ijma

1. Must be of qualified mujtahids — not of laypersons, scholars of other fields, or unqualified clerics.
2. Must concern a legal question — not a pure theological or historical matter.
3. Must be unanimous among the mujtahids of that age (classical view; some later jurists admit a near-unanimous view).
4. Must not contradict the Quran or an established Sunnah.
5. Must relate to a period where mujtahids existed — i.e., a generation with such scholarly infrastructure.

3. Types of Ijma

4. Modes of Ijma

• Sarih (explicit) Ijma — jurists expressly state their agreement on a question.
• Sukuti (tacit) Ijma — one or more jurists declare a view, others do not dissent; inferred consensus. Controversial — Hanafis accept; Shafis generally require express agreement.

5. Binding Force and Revocability

Once a valid Ijma is established, all later Muslims are bound by it. The prevailing Sunni view is that a subsequent Ijma cannot revoke an earlier Ijma — on the theory that the earlier consensus having been free from error (by the cited Hadith), a later revocation would itself be error. Modern reformists have contested this view, arguing that legal rules established in a specific context by Ijma may legitimately be reopened when conditions change.

6. Shia Position

Shia jurisprudence treats Ijma very differently. The Ithna Ashari school does not accept Ijma of the Companions as independently binding — since Shias reject the religious authority of most Companions (except the Imams from Ahl al-Bayt). Ijma is binding in Shia law only if it is taken to disclose the opinion of the Imam. Practically, this narrows Ijma to a form of evidence about the Imam's teaching.

7. Ijma in Indian Courts

Indian courts, lacking any constitutional mechanism to convene contemporary Ijma, treat authoritative classical Ijma as evidence of Muslim law. Authoritative texts — especially Hidayah (Marghinani) and Fatawa-i-Alamgiri (compiled under Aurangzeb) — are treated as records of settled Ijma and have been cited innumerable times from the Privy Council through the Supreme Court. The Privy Council in Baker Ali Khan v. Anjuman Ara Begum (1903) 30 IA 94 emphatically ruled that courts must apply classical Ijma rather than engineer new rules.

PART B — QIYAS (Analogical Deduction)

1. Meaning

'Qiyas' (Arabic: قِيَاس) literally means 'measurement' or 'comparison'. Juristically it is the process of deducing a rule of law for a new case by reasoning from an existing rule in the Quran, Sunnah or Ijma, where the two cases share the same effective cause (illah). It is the fourth primary source of Muslim law and the chief engine of legal reasoning in Sunni jurisprudence.

2. The Four Pillars (Arkan) of Qiyas

3. Conditions of a Valid Qiyas

• The original case (asl) must be founded on a Quranic verse, Sunnah or Ijma — never on another Qiyas.
• The rule (hukm) of the original case must still be in force and must be a shar'i rule.
• The illah (effective cause) must be ascertainable, rational, and not confined exclusively to the original case.
• The illah must be common to both the original and the new case.
• The rule arrived at by Qiyas must not contradict a clear Quranic text or Sunnah.
• The illah must be the 'operative' cause, not a mere descriptive attribute.

4. Kinds of Qiyas

1. Qiyas al-Awla (analogy a fortiori) — the new case has the operative cause in a stronger degree than the original. Example: the Quran prohibits saying 'uff' (expression of disrespect) to parents; a fortiori, beating them is even more strongly prohibited.
2. Qiyas al-Musawi (analogy of equal measure) — the two cases share the illah in equal measure.
3. Qiyas al-Adna (analogy by lesser similarity) — the new case has the illah in a weaker degree; weakest form, used cautiously.

5. Classical Example — The Wine and Drugs Analogy

The Quran (Sura Maidah 5:90–91) prohibits khamr (fermented wine). The illah of the prohibition, identified by the jurists, is 'intoxication' — the impairment of reason. Narcotics, though unknown in the Prophet's Arabia, share this illah. By Qiyas, narcotics are therefore prohibited. The same reasoning extends to modern synthetic drugs, solvent abuse, and other substances impairing cognitive functions.

6. Modern Applications

• Bank interest (riba) — Quran prohibits riba (usury); illah debated. Traditionalists hold that all interest is prohibited by Qiyas. Modernists argue interest in a commercial banking context differs structurally and may not share the illah of exploitative usury.
• Organ transplantation — Quran's high value on human life (5:32) and the Sunnah's respect for the body create tension. Modern fatwa bodies permit transplantation by Qiyas from Quranic principles of saving life outweighing other concerns, subject to conditions (consent, no commercial trade).
• Assisted reproduction (IVF) — permitted between husband and wife by Qiyas from Quranic preservation of lineage (nasl); surrogate arrangements and donor gametes remain debated.
• Cryptocurrency — modern fatwas split on whether crypto is 'property' (mal) by Qiyas from traditional currency; evolving debate.
• Intellectual property — copyright and patents justified by Qiyas from the classical concept of 'property of effort' (kasb).
• Environmental regulation — prohibited by Qiyas from the prohibition of mischief (fasad) on earth.

7. The Shia Position on Qiyas

The Shia Ithna Ashari school formally rejects Qiyas. The rejection stems from (i) a doctrinal view that the teachings of the infallible Imams cover every legal question, removing the need for human-speculative analogy; and (ii) a methodological concern that Qiyas is liable to arbitrary manipulation by jurists. In place of Qiyas, Shia Usuli methodology employs Aql (structured reason) — controlled by the Quran, the Sunnah (through the Imams) and certain classes of Ijma — which operates analogously to Qiyas but with a different theoretical framing.

8. Criticism of Qiyas

Imam Dawud al-Zahiri and the Zahiri school rejected Qiyas as impermissible speculation. Modern critics argue that Qiyas's reliance on ascertaining illah imports significant juristic discretion, which undermines legal certainty. Classical defenders (Imam Shafi, al-Ghazali) replied that, properly practised, Qiyas does not introduce novel rules but merely extends textual rules to logically similar cases — and that refusal to do so would produce absurdities (e.g., narcotics becoming permissible merely because the Quran did not mention them by name).

PART C — IJTIHAD AND TAQLID

1. Ijtihad

'Ijtihad' means independent juristic reasoning — the exercise of all juristic faculties (knowledge of the Quran, Sunnah, Ijma, Qiyas, and the purposes of Shariah) to derive a legal rule. It is the method by which primary sources are applied to new questions; a person qualified to perform it is a mujtahid.

Qualifications of a Mujtahid

• Thorough knowledge of Arabic language.
• Expertise in the Quran and its interpretation.
• Expertise in the Sunnah — knowing Sahih from Da'if Hadith.
• Knowledge of the points of Ijma.
• Knowledge of the principles of Qiyas and usul-al-fiqh.
• Comprehensive understanding of the objectives (maqasid) of Shariah.
• Moral integrity (adalah).

2. Taqlid

'Taqlid' is the acceptance of the legal rulings of another jurist without independent investigation. It is the practice of following a school (madhab). For most Muslims — lacking the qualifications of a mujtahid — taqlid is the practical mode of compliance with Muslim law.

3. The 'Closure of the Door of Ijtihad' Debate

From the 4th century Hijri onward, Sunni scholarship progressively took the view that the four established schools had covered the ground for ijtihad; later scholars should practise taqlid within a school rather than exercise independent reasoning. This 'closure of the door of ijtihad' (insidad bab al-ijtihad) was never unanimously accepted; reformers in every century have called for reopening it. In the modern period, movements such as the Salafi, Wahhabi, Ahl-i-Hadith and Muhammad Abduh's reformism have vigorously reopened the door. The Shia Usuli tradition never closed it.

Legal implication: Modern Muslim legal reform — including Indian statutes on Muslim personal law — reflects a practical reopening of ijtihad by legislatures and courts. The Muslim Women (Protection of Rights on Divorce) Act 1986 and the Muslim Women (Protection of Rights on Marriage) Act 2019 represent ijtihad performed by the Indian sovereign, drawing on primary sources and reformist interpretations.

D. Landmark Cases on Ijma and Qiyas in Indian Courts

1. Baker Ali Khan v. Anjuman Ara Begum, (1903) 30 IA 94 (PC)

The Privy Council held that it is not the duty of Indian courts to speculate on the correctness of settled Muslim law as expounded by classical jurists — courts must apply the law as it has been handed down. This effectively froze judicial ijtihad in colonial courts. Ratio: Indian courts administer Muslim law as found in classical Ijma; new Ijma or ijtihad is not judicially devisable.

2. Aga Mahomed Jaffer v. Koolsom Beebee, (1897) 24 IA 196 (PC)

Discussed throughout this module. Courts cannot refuse a rule of classical Ijma on grounds of equity and good conscience — underscoring the binding force of settled Ijma.

3. Shamim Ara v. State of U.P., (2002) 7 SCC 518

Justice Lahoti's use of Quranic verses and Hadith, together with modern reformist juristic opinion, to require that talaq be preceded by arbitration — in effect, a judicial re-opening of Qiyas and Ijma for the purpose of doing justice. A modern landmark in the practical exercise of ijtihad by Indian courts.

4. Shayara Bano v. Union of India, (2017) 9 SCC 1

Justice Kurian Joseph's engagement with classical Hanafi and reformist Hanbali texts (Ibn Taymiyya, Ibn al-Qayyim) demonstrates the Court's willingness to re-examine settled Ijma when constitutional values demand it. The judgment is, in effect, a constitutional ijtihad.

E. Exam Corner

Practice Questions

1. Discuss Ijma as a source of Muslim law. What are its kinds, essentials and binding force? (15 marks)
2. "Qiyas is the fourth source of Muslim law but the first source of its growth." Critically examine. (15 marks)
3. Distinguish between Ijtihad and Taqlid. Discuss the debate on the 'closure of the door of ijtihad'. (10 marks)
4. What is the Shia position on Ijma and Qiyas? How does Aql function in Shia jurisprudence? (10 marks)
5. MCQ: The four pillars of Qiyas are — (a) Quran, Sunnah, Ijma, Qiyas (b) Hadith, Isnad, Matn, Sanad (c) Asl, Far', Hukm, Illah (d) Hanafi, Shafi, Maliki, Hanbali. Answer: (c).

F. Conclusion

Ijma and Qiyas together complete the architecture of the primary sources of Muslim law. Ijma preserves continuity with the past — the consensus of jurists in earlier generations binds successors. Qiyas ensures adaptability to the future — the principles of the Quran and Sunnah are extended to cases the founders did not envisage. The combination permits Islamic law to retain a fixed divine foundation while engaging meaningfully with changing social realities.

For the Indian judicial aspirant, three practical points are essential. First, Indian courts treat classical Ijma as authoritative but do not purport to create fresh Ijma; statutory reform is the modern substitute. Second, Qiyas remains the primary analytical tool whenever the Quran and Sunnah are silent — and modern judicial reasoning in cases like Shamim Ara (2002) and Shayara Bano (2017) can be understood as a constitutionalised form of Qiyas. Third, the Shia rejection of Qiyas, and Shia narrower Ijma, remain important examination points. Ijma and Qiyas are not dusty medieval concepts — they are the living logic of Muslim law as applied in India today.

G. Frequently Asked Questions

Q1. What is Ijma?

Ijma is the consensus of qualified Muslim jurists (mujtahideen) on a legal question. It is a primary source of Muslim law, operating where the Quran and Sunnah are silent or ambiguous.

Q2. Is Ijma binding?

Yes. A valid Ijma is binding on all subsequent Muslims. The classical Sunni view is that it cannot be revoked by a later Ijma. Modern reformers contest this view, arguing that legal rules established by Ijma in past conditions may legitimately be revisited.

Q3. What is Qiyas?

Qiyas is analogical deduction — the method of deriving a rule for a new case by reasoning from an established rule in the Quran, Sunnah or Ijma, based on a common effective cause (illah).

Q4. What are the four pillars of Qiyas?

Asl (original case), Far' (new case), Hukm (rule), and Illah (effective cause). All four must be present for a valid Qiyas.

Q5. Do Shias accept Qiyas?

No. The Shia Ithna Ashari school rejects Qiyas as impermissible speculation and substitutes Aql (structured reason, controlled by Quran and the teachings of the Imams).

Q6. What is the 'door of ijtihad'?

'Ijtihad' means independent juristic reasoning. The metaphor of the 'door' refers to whether fresh ijtihad is possible in a given era. Classical Sunni orthodoxy held the door had closed in the 4th century Hijri; modern reformers argue for its reopening.

Q7. Can an Indian legislature perform ijtihad?

In substantive effect, yes. When Parliament enacts reforms to Muslim personal law — as in the DMMA 1939, MW(PRD) Act 1986 or MW(PRM) Act 2019 — it performs a form of institutional ijtihad, drawing on primary sources and reasoned interpretation. The difference from classical ijtihad is only institutional: it is the sovereign legislature, not an individual mujtahid, exercising the reasoning.

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