Topic:
Analyse the Ijma consensus Doctrine in Sharia (L

Question

Topic:
Analyse the Ijma consensus Doctrine in Sharia (Law) System

Ram Kumar · Accepted Answer

Ijma consensus Doctrine in Sharia System
The foundations of Sariah law are the Quran, Sunnah, Ijma (consensus), and qiyas. These are the fundamental sources of law, appearing autonomous and distinct from one another. The Quran and Sunnah are the primary sources; ijma and qiyas are subsidiary principles. They are typically utilized when the seeds are deafeningly silent on a subject. According to legend, these sources do not produce waterproof gaps (Sisson, E. (2015)). They are inextricably linked and share the same spirit of a revelation: the Quran is God's word; the Sunnah is its commentary, explanation, and application in practice, though it sometimes carries only the spirit and meaning of the Quran's teachings; Ijma is based on evidence derived from one of them; qiyas requires an original foundation(Sisson, E. (2015)).
This crucial idea was critical in the integration of the Muslim minority. It presented itself as the general average view, the community's common emotion, and the binding power of a body of rules against failed and incorrect opinions. With its intricate theory and ramifications, it evolved during the classical period. Then rose to become the final authority on religious things. The ijma standardized all religious doctrines. This refusal was seen as heresy, sometimes even as disbelief. Its loosened machinery pales in comparison to the church's institution. Classical theory, on the other hand, regards it as having the same force and spirit.
Fiqh is the science of finding the specific words of Sharia in Muslim jurisprudence. Beginning in the second part of the eighth century, oral transmission and the growth of this discipline gave way to written legal literature devoted to the study of the essence of law and the proper technique for its derivation and justification. The core idea was expanded and systematized in various comments during the Middle Ages, and the copious literature resulted from the traditional textual authority of Sharia law (Sandberg, R., & Thompson, S. (2016).)
Sharia is distinct from Western legal systems in two ways. For starters, Sharia's reach is significantly broader, regulating the individual's connection not just to his neighbors and the state, which is the limit of most other legal systems, but also to God and the individual's conscience. Daily prayers (alt), almsgiving (zakat), fasting (sawm), and pilgrimage (hajj) are all elements of Sharia law and usually take up the initial chapters of legal texts. Sharia addresses ethical norms and legal rules, stating what a person is legally allowed or compelled to do and what they should do or avoid doing ethically. As a result, certain activities are classed as praiseworthy (mandb), which means that their execution brings divine favor and their omission brings divine disfavor.
In contrast, others are labeled as blameworthy (makruh), which has the opposite effect. However, there is no legal punishment or reward, invalidity, or validity in any instance. Sharia is more than just a legal system; it is also a comprehensive code of behavior that applies to private and public actions (Rani, F. A., Fikri, F., & Mahfud, M. (2020, May).).
The Islamic notion of law as a manifestation of God's will results in the second significant distinction between Sharia and the Western legal system. When the Prophet Muhammad died in 632, the direct transmission of God's will to humans stopped, and the circumstances of divine revelation became set and immutable. Thus, the overall image of Shari'a is one of constant continuity, which typically applies to specific areas of law like ceremonial law. However, revelation can be understood in various ways, and the diversity of viable interpretations has resulted in a wide range of viewpoints on practically every law topic over time. The ulma (Muslim religious experts) monopolized legal interpretation in the pre-modern period. Still, this monopoly was challenged by Western elites and laypeople beginning in the 19th century(Vischer, R. K. (2012).). The issue of which arrangements become normative at any particular point is complicated. Early Western students of Islamic law assumed that, while Islamic law impacted Muslim cultures, Muslim civilizations had little influence on Islamic law. This posture, however, has grown untenable. Social forces and shared interests had a significant effect in defining the application of Islamic law in certain circumstances, both in pre-modern and modern periods.
Sharia law expresses the spirit of Quranic teachings via logic and human interpretation. According to this viewpoint, the entire body of customary law results from human opinion and individual reasoning. Because human thought and attitude are engaged in the process, this phenomenon becomes subjective, and these four sources are best referred to as the foundations of law. However, the immaculate ijma has granted sanctity to this creation of the human intellect.
Individual Sharia responsibilities are roughly split into those owed to God and those owed to other humans. Only the second type of legal responsibility in the Western sense is discussed here.
Penal law
Offenses against another person, ranging from murder to assault, are penalized by retribution, which treats the perpetrator the same as the victim. This crime is classified as a civil tort rather than a criminal in the technical sense since the victim or the victim's family has the right to prosecute and seek compensation or blood money rather than revenge.
The punishment for a few particular offenses includes death for apostasy, amputation of an arm for theft and amputation of an arm and leg for road robbery, and death by stoning for extramarital sex when the perpetrator is married. And 100 lashes if the perpetrator is unmarried, and 80 lashes if the accusation is unsubstantiated(Tamadonfar, M. (2001)).

Law of transactions
Every individual with "prudent judgment," a trait often associated with physical maturity or puberty, has the legal ability to act. The legislation presumes that boys and girls under the age of 12 and 9 have not achieved puberty and that both sexes have reached puberty by age 15. Individuals who are not rushed are placed under a ban owing to their minority or mental deficiency: their affairs are controlled by a guardian, and they cannot act effectively without his authorization. The fundamental principles of the law are laid out in four basic transactions:
•	A sale (bay), a transfer of ownership, or a collection of property for consideration
•	A lease (hijrah), a transfer of the usufruct (usufructuary) of property for reflection
•	A gift (hibah), a gratuitous transfer of a set of property
•	A loan (Riyadh), a gratuitous transfer of usufruct to property
These fundamental concepts are then used for various transactions, including pledges, deposits, guarantees, agencies, assignments, land leases, partnerships, and charity foundations (waqf). A waqf is a unique Islamic institution in which founders give up ownership of the immovable property to God and dedicate the land's revenue or usufruct in perpetuity to some pious or benevolent cause. This might involve a settlement in the founder's favor.
The notion of the rib has a considerable impact on Islamic transaction law. In theory, this is a restriction against usury. Still, the term rib has been carefully defined to include and therefore exclude any interest on a capital loan or investment. And, because a general prohibition accompanied this teaching on gambling transactions, Islamic law typically does not authorize any speculative transaction whose outcomes in tangible rewards to the parties cannot be adequately foreseen(Shah, N. A. (2015).).
Family law
The patriarchal viewpoint is the foundation of traditional Islamic family law. Fathers have the legal right to marry off their daughters, whether minors or adults, but attorneys believe that an adult woman who is no longer a virgin must express her permission for the marriage. Since a generally regarded statement of Muhammad seems to indicate such a right, jurists have debated whether a virgin girl has the right to protest a marriage contracted for her by her father. Some jurists believed that the daughter's opposition should be considered but not binding, but others believed such an objection should bar marriage. An adult woman can engage in her marriage contract under anaf and Shii law, but her guardian can cancel the wedding if his ward marries below her social level.
The validity of children in the family group determines their legal position in terms of custody, support, and inheritance. A kid is legitimate if it may be reasonably presumed that it was conceived during the parents' lawful marriage. There is no legal tie between a father and his illegitimate kid until the father officially claims the child as his own; nevertheless, there is always a legal bond between a mother and her illegitimate child. Custody of the kid (the right to decide on issues like schooling and marriage) and property of minor children go to the father or another close male relative. However, the right of custody (anah) for small children whose parents are divorced or separated belongs to the mother or other female relatives on the mother's side.

Law of succession
Generally, a person's right to dispose of their will is limited to one-third of their net wealth (i.e., the assets remaining after funeral expenses and debts have been paid). According to the obligatory norms of inheritance, two-thirds of the estate belongs to the deceased's lawful heirs.
Procedure and evidence
Sharia law was traditionally administered by a single qadi court, which evaluated facts and law. However, he might seek the counsel of a professional lawyer or legal advisor (mufti) on complicated legal matters. There was no judicial hierarchy or established system of appeals. The qadi oversaw the court processes, which were frequently devoid of ceremony or complexity, through his clerk (KiB). Although legal assistance was not uncommon, parties typically arrived in person and addressed their pleadings to the qadi verbally. 
The qadi's first responsibility was to determine who had the burden of proof. It was not always the party that launched the litigation; instead, it was the party whose claim contradicted the original legal assumption in the case. The critical belief in the event of an alleged crime was the accused's innocence, and in the case of a debt claim, the presumption that the claimed debtor was debt-free. In the first case, the prosecution would bear the burden of proof, whereas the plaintiff creditor would take responsibility in the second. In fact, the burden of evidence might shift between parties several times throughout the course of a single dispute(Quraishi-Landes, A. (2014).).
 In both criminal and civil proceedings, the level of proof required—whether an early, intermediate, or ultimate issue—was strict and virtually the same. If the defendant did not confess or confess, the prosecutor or prosecutor was required to bring two witnesses who testified verbally that they had firsthand knowledge of the veracity of his statement. Written evidence and circumstantial evidence, especially more self-convincing circumstantial evidence, were typically excluded. Furthermore, the oral testimony (Shahadah) was usually required to be presented by two adult male Muslims of proven honesty and character. However, women's evidence was accepted in some circumstances, and in most property disputes, the claimant could meet the burden of proof with one witness and his own solemn swear that the truth was spoken.

References 
Sisson, E. (2015). The future of sharia law in American arbitration. Vand. J. Transnat'l L., 48, 891.
Sandberg, R., & Thompson, S. (2016). The sharia law debate: the missing family law context. Law 
           & Just.-Christian L. Rev., 177, 181.
Rani, F. A., Fikri, F., & Mahfud, M. (2020, May). Islam and National Law: A Formal Legal 
           Review on Sharia Laws in Aceh. In Al-Risalah: Forum Kajian Hukum dan Sosial 
           Kemasyarakatan (Vol. 20, No. 1, pp. 47-57).
Vischer, R. K. (2012). The dangers of anti-sharia laws. First Things: A Monthly Journal of 
           Religion and Public Life, (221), 26-29.
Tamadonfar, M. (2001). Islam, law, and political control in contemporary Iran. Journal for the 
           Scientific Study of Religion, 40(2), 205-220.
Shah, N. A. (2015). Islamic law. In Encyclopedia of public administration and public policy.
Quraishi-Landes, A. (2014). The Sharia problem with Sharia legislation. Ohio NUL Rev., 41, 545.
El-Hassan, A. E. W. A. (1985). The doctrine of duress (ikrah) in Sharia, Sudan, and English 
           law. Arab Law Quarterly, 1(2), 231-236.

Topic: Analyse the Ijma consensus Doctrine in Sharia (Law) System

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