Search This Blog

Monday, March 7, 2011

Ijtihad, or Personal Reasoning


IJTIHAD
Ijtihad is the most important source of Islamic law next to the Qur'an and the Sunnah. The main
difference between ijtihad and the revealed sources of the Shari'ah lies in the fact that ijtihad is a
continuous process of development whereas divine revelation and prophetic legislation discontinued
upon the demise of the Prophet. In this sense, ijtihad continues to be the main instrument of interpreting
the divine message and relating it to the changing conditions of the Muslim community in its
aspirations to attain justice, salvation and truth.
Since ijtihad derives its validity from divine revelation, its propriety is measured by its harmony with
the Qur'an and the Sunnah. The sources of Islamic law are therefore essentially monolithic, and the
commonly accepted division of the roots of jurisprudence into the primary and secondary is somewhat
formal rather than real. The essential unity of the Shari'ah lies in the degree of harmony that is achieved
between revelation and reason. Ijtihad is the principal instrument of maintaining this harmony. The
various sources of Islamic law that feature next to the Qur'an and the Sunnah are all manifestations of
ijtihad, albeit with differences that are largely procedural in character. In this way, consensus of
opinion, analogy, juristic preference, considerations of public interest (maslahah), etc., are all interrelated
not only under the main heading of ijtihad, but via it to the Qur'an and the Sunnah.

The subject of ijtihad must be a question of Shari'ah; more specifically, ijtihad is concerned with the
practical rules of Shari'ah which usually regulate the conduct of those to whom they apply (i.e. the
mukallaf). This would preclude from the scope of ijtihad purely intellectual (`aqli) and customary (urfi)
issues, or matters that are perceptible to the senses (hissi) and do not involve the inference of a hukm
shar'i from the evidence present in the sources. Thus ijtihad may not be exercised in regard to such
issues as the createdness of the universe, the existence of a Creator, the sending of prophets, and so
forth, because there is only one correct view in regard to these matters, and any one who differs from it
is wrong. Similarly, one may not exercise ijtihad on matters such as the obligatory status of the pillars
of the faith, or the prohibition of murder, theft, and adultery. For these are evident truths of the Shari'ah
which are determined in the explicit statements of the text.


The detailed evidences found in the Qur'an and the Sunnah are divided into four types, as follows.
1) Evidence which is decisive both in respect of authenticity and meaning.
2) Evidence which is authentic but speculative in meaning.
3) That which is of doubtful authenticity, but definite in meaning.
4) Evidence which is speculative in respect both of authenticity and meaning.


An example of ijtihad concerning evidence which is definite of proof but speculative of meaning is
the Qur'anic text in sura al-Baqarah (2:228): 'The divorced women must observe three courses (quru')
upon themselves.' There is no doubt concerning the authenticity of this text, as the Qur'an is authentic
throughout. However its meaning, in particular the precise meaning of the word quru', is open to
speculation. Quru' is a homonym meaning both `menstruations' and `the clean periods between
menstruations'. Whereas Imam Abu Hanifah and Ibn Hanbal have adopted the former, Imam Shafi'i and
Malik have adopted the latter meaning, and their respective ijtihad leads them to correspondingly
different results.



The Value (Hukm) of Ijtihad
Legal theory in all of its parts derives its validity from the revealed sources. It is partly for this reason
and partly for the reason of man's duty to worship his Creator that the practice of ijtihad is a religious
duty. The ulema are in agreement that ijtihad is the collective obligation (fard kafa'i) of all qualified
jurists in the event where an issue arises but no urgency is encountered over its ruling. The duty remains
unfulfilled until it is performed by at least one mujtahid. If a question is addressed to two mujtahids, or
to two judges for that matter, and one of them exerts himself to formulate a response, the other is
absolved of his duty. But ijtihad becomes a personal obligation (wajib or fard `ayn) of the qualified
mujtahid in urgent cases, that is, when there is fear that the cause of justice or truth may be lost if
ijtihad is not immediately attempted. This is particularly the case when no other qualified person can be
found to attempt ijtihad. With regard to the mujtahid himself, ijtihad is a wajib 'ayni: he must practice
ijtihad in order to find the ruling for an issue that affects him personally. This is so because imitation
(taqlid) is forbidden to a mujtahid who is capable of deducing the hukm directly from the sources.
Should there be no urgency over ijtihad, or in the event where other mujtahids are available, then the
duty remains as a fard kafa'i only. Furthermore, ijtihad is recommended (mandub) in all cases where no
particular issue has been referred to the mujtahid, or when it is attempted in the absence of an issue by
way of theoretical construction at the initiative of the jurist himself. And finally ijtihad is forbidden
(haram) when it contradicts the decisive rules of the Qur'an, the Sunnah and a definite ijma'.





Elsewhere we read in the Qur'an (Muhammad, 47:24): 'Will they not meditate on the Qur'an, or do they
have locks on their heart?'
The same conclusion is sustained in another Qur'anic passage, in sura al-Nisa' (4:59) where the text
requires the judgment of all disputes to be referred to God and to His Messenger. These and many
similar ayat in the Qur'an lend support to the conclusion that it is the duty of the learned to study and
investigate the Qur'an and the teachings of the Prophet. The correct meaning of the manifest directives
(Zawahir) of the Qur'an is also understood from the practice of the Companions who used to investigate
matters, and each would formulate their own ijtihad, in which case they would not imitate anyone
else.


The Proof (Hujjiyyah) of Ijtihad
Ijtihad is validated by the Qur'an, the Sunnah and the dictates of reason (`aql). Of the first two, the
Sunnah is more specific in validating ijtihad.  as al-Ghazali points out, provides a clear authority
for ijtihad. The same author adds: The claim that this Hadith is mursal (i.e. a Hadith whose chain of
narration is broken at the point when the name of the Companion who heard it from the Prophet is not
mentioned) is of no account. For the ummah has accepted it and has consistently relied on it; no further
dispute over its authenticity is therefore warranted.According to another Hadith,
'When a judge exercises ijtihad and gives a right judgment, he will have two rewards, but if he errs in
his judgment, he will still have earned one reward.'
This Hadith implies that regardless of its results, ijtihad never partakes in sin. When the necessary
requirements of ijtihad are present, the result is always meritorious and never blameworthy. In another Hadith, the Prophet is reported to have said: 'Strive and endeavour, (ijtahidu), for everyone is ordained to accomplish that which he is created for.

The numerous Qur'anic ayat that relate to ijtihad are all in the nature of probabilities (zawahir). All the
Qur'anic ayat which the ulema have quoted in support of qiyas (see page 217) can also be quoted in
support of ijtihad. In addition, we read, in sura al-Tawbah (9:122): 'Let a contingent from each division
of them devote themselves to the study of religion [li-yatafaqqahu fi'l-din] and warn their people [. . .]'
Devotion to the study of religion is the essence of ijtihad, which should be a continuous feature of the
life of the community. Although the pursuit of knowledge is a duty of every individual, attaining
tafaqquh, or 'erudition in religious disciplines', is necessary for those who guide the community and
warn them against deviation and ignorance. On a similar note, we read in sura al-Ankabut (29:69): 'And
those who strive [wa'l-ladhina jahadu] in Our cause, We will certainly guide them in Our paths.' It is
interesting that in this ayah the word subulana ('Our paths') occurs in the plural form, which might
suggest that there are numerous paths toward the truth, which are all open to those who exert
themselves in its pursuit. Furthermore, we read in sura al-Nisa' (4:59): `If you dispute over something,
then refer it to God and to the Messenger.' The implementation of this ayah would necessitate
knowledge of the Qur'an, the Sunnah and the objectives (maqasid) of the Lawgiver on whose basis
disputed matters could be adjudicated and resolved.


Conditions (Shurut) of Ijtihad
The mujtahid must be a Muslim and a competent person of sound mind who has attained a level of
intellectual competence which enables him to form an independent judgment. In his capacity as a
successor to the Prophet, the mujtahid performs a religious duty, and his verdict is a proof (hujjah) to
those who follow him; he must therefore be a Muslim, and be knowledgeable in the various disciplines
of religious learning. A person who fails to meet one or more of the requirements of ijtihad is
disqualified and may not exercise ijtihad. The requirements which are discussed below contemplate
ijtihad in its unrestricted form, often referred to as ijtihad fi'l-shar`, as opposed to the varieties of ijtihad
that are confined to a particular school, or to particular issues within the confines of a given madhhab.

These requirements are as follows:
Knowledge of Arabic to the extent that enables the scholar to enjoy a correct understanding of the
Qur'an and the Sunnah. A complete command and erudition in Arabic is not a requirement, but the
mujtahid must know the nuances of the language and be able to comprehend the sources accurately and
deduce the ahkam from them with a high level of competence.
Al-Shatibi, however, lays greater emphasis on the knowledge of Arabic: a person who possesses only an
average knowledge of Arabic cannot aim at the highest level of attainment in ijtihad. The language of
the Qur'an and the Sunnah is the key to their comprehension and the ijtihad of anyone who is deficient
in this respect is unacceptable. The same author adds: Since the opinion of the mujtahid is a proof
(hujjah) for a layman, this degree of authority necessitates direct access to the sources and full
competence in Arabic.
The mujtahid must also be knowledgeable in the Qur'an and the Sunnah, the Makki and the Madinese
contents of the Qur'an, the occasions of its revelation (asbab al-nuzul) and the incidences of abrogation
therein. More specifically, he must have a full grasp of the legal contents, or the ayat al-ahkam, but not
necessarily of the narratives and parables of the Qur'an and its passages relating to the hereafter.
however, observes that a specification of this kind cannot be definitive. For a mujtahid may infer a legal
rule from the narratives and parables that are found in the Qur'an. The knowledge of ayat al-ahkam
includes knowledge of the related commentaries (tafasir) with special reference to the Sunnah and the
views of the Companions. Al-Qurtubi's Tafsir al-Qurtubi, and the Ahkam al-Qur'an of Abu Bakr, 'Ali
al-Jesses, are particularly recommended.
Next, the mujtahid must possess an adequate knowledge of the Sunnah, especially that part of it which
relates to the subject of his ijtihad. This is the view of those who admit the divisibility (tajzi'ah) of
ijtihad (for which see below), but if ijtihad is deemed to be indivisible, then the mujtahid must be
knowledgeable of the Sunnah as a whole, especially with reference to the ahkam texts, often referred to
as ahadith al-ahkam. He must know the incidences of abrogation in the Sunnah, the general and the
specific,




('amm and khass), the absolute and the qualified (mutlaq and muqayyad), and the reliability or
otherwise of the narrators of Hadith. It is not necessary to commit to memory the ahadith al-ahkam or
the names of their narrators, but he must know where to find the ahadith when he needs to refer to
them, and be able to distinguish the reliable from the weak and the authentic from the spurious.

Furthermore, the mujtahid should know the objectives (maqasid) of the Shari'ah, which consist of the
masalih (considerations of public interest). The most important masalih are those which the Lawgiver
has Himself identified and which must be given priority over others. Thus the protection of the `Five
Principles', namely of his, religion, intellect, lineage and property, are the recognised objectives of the
Lawgiver. These are the essentials (daruriyyat) of the masalih and as such they are distinguished from
the complementary (hajiyyat) and the embellishments (tahsiniyyat). The mujtahid must also know the
general maxims of fiqh such as the removal of hardship (raf`al-haraj), that certainty must prevail over
doubt, and other such principles which are designed to prevent rigidity in the ahkam. He must be able to
distinguish the genuine masalih from those which might be inspired by whimsical desires, and be able
to achieve a correct balance between values.

It is further suggested in this connection that the mujtahid must be capable of distinguishing strength
and weakness in reasoning and evidence. This requirement has prompted some ulema to say that the
mujtahid should have a knowledge of logic (mantiq). But this is not strictly a requirement. For logic as
a discipline had not even developed during the time of the Companions, but this did not detract from
their ability to practice ijtihad.

And finally, the mujtahid must be an upright (`adil) person who refrains from committing sins and
whose judgement the people can trust. His sincerity must be beyond question and untainted with selfseeking
interests. For ijtihad is a sacred trust, and anyone who is tainted with heresy and selfindulgence
is unworthy of it.

These are the conditions of
independent ijtihad, but a mujtahid on particular issues need only know all the relevant information
concerning those issues and may, at least according to those who admit the `divisibility' of ijtihad,
practice ijtihad in respect of them. His lack of knowledge in matters unrelated to the issues concerned
does not prejudice his competence for ijtihad.

Divisibility of Ijtihad
The question to be discussed here is whether a person who is learned on a particular subject is qualified
to practice ijtihad in that area, or whether he is required to qualify as a full mujtahid first in order to be
able to carry out any ijtihad at all. The majority of ulema have held the view that once a person has
fulfilled the necessary conditions of ijtihad he is qualified to practice it in all areas of the Shari'ah.
According to this view, the intellectual ability and competence of a mujtahid cannot be divided into
compartments. Ijtihad, in other words, is indivisible, and we cannot say that a person is a mujtahid in
the area of matrimonial law and an imitator (muqallid) in regard to devotional matters (`ibadat) or viceversa.
To say this would be tantamount to a contradiction in terms, as ijtihad and taqlid cannot be
combined in one and the same person.

The majority
view is based on the analysis that ijtihad for the most part consists of formulating an opinion, or zann,
concerning a rule of the Shari'ah. A zann of this type occurs only to a fully qualified mujtahid who has
attained the necessary level of intellectual competence. It is further argued that all the branches of the
Shari`ah are interrelated, and ignorance in one may lead to an error or misjudgment in another. The
majority view is further supported by the argument that once a person has attained the rank of mujtahid
he is no longer permitted to follow others in matters where he can exercise ijtihad himself.

Among the majority there are some ulema who have allowed an exception to the
indivisibility of ijtihad. This is the area of inheritance, which is considered to be self-contained as a
discipline of Shari'ah law and independent of the knowledge of the other branches. Hence a jurist who
is only knowledgeable in this field may practice ijtihad in isolation from the other branches of Fiqh.

Some Maliki, Hanbali and Zahiri ulema have, however, held the view that ijtihad is divisible. Hence
when a person is learned in a particular area of the Shari`ah he may practice ijtihad in that area only.
This would in no way violate any of the accepted principles of ijtihad. There is similarly no objection,
according to this view, to the possibility of a person being both a mujtahid and a muqallid at the same
time. Thus a mujtahid may confine the scope of his ijtihad to the area of his specialisation. This has, in
fact, been the case with many of the prominent Imams who have, on occasions, admitted their lack of
knowledge in regard to particular issues. Imam Malik is said to have admitted in regard to thirty-six
issues at least that he did not know the right answer. But in spite of this, there is no doubt concerning
Malik's competence as a fully-fledged mujtahid.



The view that ijtihad is divisible is supported by a number of prominent ulema, including Abu'l-Husayn
al-Basri, al-Ghazali, Ibn al-Humam, Ibn Taymiyyah, his disciple Ibn al-Qayyim and al-Shawkani. Al-
Ghazali thus observes that a person may be particularly learned in qiyas and be able to practice ijtihad
in the form of analogy even if he is not an expert on Hadith. According to the proponents of this view,
if knowledge of all the disciplines of Shari'ah were to be a requirement, most ulema would fail to meet
it and it would impose a heavy restriction on ijtihad. Al-Shawkani, Badran and al-Kassab have all
observed that this is the preferable of the two views.

One might add here that in modern times, in view of the sheer bulk of information and the more rapid
pace of its growth, specialisation in any major area of knowledge would seem to hold the key to
originality and creative ijtihad. Divisibility of ijtihad would thus seem to be in greater harmony with the
conditions of research in modern times. By way of a postscript, one might also remark that the
classification of mujtahids into various ranks, such as mujtahids in a particular school or on particular
issues, takes for granted the idea that ijtihad is divisible.

Procedure of Ijtihad
Since ijtihad occurs in a variety of forms, such as qiyas, istihsan, maslahah mursalah, and so on, each
of these is regulated by its own rules. There is, in other words, no uniform procedure for ijtihad as such.
The ulema have nevertheless suggested that in practicing ijtihad, the jurist must first of all look at the
nusus of the Qur'an and the Hadith, which must be given priority over all other evidences. Should there
be no nass on the matter, then he may resort to the manifest text (zahir) of the Qur'an and Hadith and
interpret it while applying the rules pertaining to the general (`amm) and specific (khass), the absolute
and the qualified, and so forth, as the case may be. Should there be no manifest text on the subject in the
Qur'an and the verbal Sunnah, the mujtahid may resort to the actual (fi'li) and tacitly approved (taqriri)
Sunnah. Failing this, he must find out if there is a ruling of ijma` or qiyas available on the problem in

the works of the renowned jurists. In the absence of any guidance in these works, he may attempt an
original ijtihad along the lines of qiyas. This would entail a recourse to the Qur'an, the Hadith, or ijma`
for a precedent that has a `illah identical to that of the far' (i.e.. the case for which a solution is
wanting). When this is identified, he is to apply the principles of qiyas in order to deduce the necessary
ruling. In the absence of a textual basis on which an analogy could be founded, the mujtahid may resort
to any of the recognised methods of ijtihad such as istihsan, maslahah mursalah, istishab, etc, and
derive a solution while applying the rules that ensure the proper implementation of these doctrines.

The foregoing procedure has essentially been formulated by al-Shafi'i, who is noted to have observed
the following. When an incident occurs, the mujtahid must first check the nusus of the Qur'an, but if he
finds none, he must refer to Mutawatir Hadiths and then to solitary Hadiths. If the necessary guidance is
still not forthcoming, he should postpone recourse to qiyas until he has looked into the manifest (zahir)
text of the Qur'an. If he finds a manifest text which is general, he will need to find out if it can be
specified by means of Hadith or qiyas. But if he finds nothing that would specify the manifest text, he
may apply the latter as it stands. Should he fail to find a manifest text in the Qur'an or the Sunnah, he
must look into the madhahib. If he finds a consensus among them, he applies it, otherwise he resorts to
qiyas, but in doing so, he must pay more attention to the general principles of the Shari'ah than to its
subsidiary detail. If he does not find this possible, and all else fails, then he may apply the principle of
original absence of liability (al-bara'ah al-asliyyah). All this must be in full cognizance of the rules that
apply to the conflict of evidences (al-ta`arud bayn al-adillah), which means that the mujtahid should
know the methods deployed in reconciling such conflicts, or even eliminating one in favour of the
other, should this prove to be necessary. The ruling so arrived at may be that the matter is obligatory
(wajib), forbidden (haram), reprehensible (makruh), or recommended (mandub).





From the viewpoint of the procedure that it employs, ijtihad may occur in any of the following four
varieties. Firstly, there is the form of a juridical analogy (qiyas) which is founded on an effective cause
(`illah). The second variety of ijtihad consists of a probability (zann) without the presence of any `illah,
such as practicing a ijtihad in regard to ascertaining the time of salah or the direction of the qiblah. The
third type of ijtihad
consists of the interpretation of the source materials and the deduction of ahkam from an existing
evidence. This type of ijtihad is called ijtihad bayani, or 'explanatory ijtihad', which takes priority over
'analogical ijtihad', or ijtihad qiyas. The fourth variety of ijtihad, referred to as ijtihad istislahi, is based
on maslahah and seeks to deduce the ahkam
in pursuance of the spirit and purpose of the Shari'ah, which may take the form of istislah, juristic
preference (istihsan), the obstruction of means (sadd al-dhara'i'), or some other technique.


Imam Shafi`i accepts only the first type, namely analogical ijtihad, but for the majority of ulema, ijtihad is not
confined to qiyas and may take the form of any of the foregoing varieties.

The Ijtihad of the Prophet and his Companions
The question to be discussed here is whether all the rulings of the Prophet should be regarded as having
been divinely inspired or whether they also partake in ijtihad. The ulema are generally in agreement
that the Prophet practiced ijtihad in temporal and military affairs, but they have differed as to whether
his rulings in shar'i matters could properly fall under the rubric of ijtihad. According to the Ash'aris, the
Mu'tazilah, Ibn Hazm al-Zahiri and some Hanbali and Shafi'i ulema, the Qur'an provides clear evidence
that every speech of the Prophet partakes in wahy. A specific reference is thus made to sura al-Najm
(53:3) which provides `He says nothing of his own desire, it is nothing other than revelation [wahy] sent
down to him.' This ayah is quite categorical on the point that the Prophet is guided by divine revelation
and that all his utterances are to be seen in this light. This would mean that all the rulings of the Prophet
consist of divine revelation and that none would occur in the form of ijtihad.

The majority of ulema have, however, held that the Prophet in fact practiced ijtihad just as he was
allowed to do so. This, it is said, is borne out by the numerous ayat of the Qur'an where the Prophet is
invited, along with the rest of the believers, to meditate on the Qur'an and to study and think about the
created world. As for the ayah in sura al-Najm quoted above, the majority of ulema have held that the
reference here is to the Qur'an itself, and not to every word that the Prophet uttered. That this is so is
borne out by the use of the pronoun `it' (huwa) in this ayah, which refers to the Qur'an itself. The
majority view adds that the occasion for the revelation (sha'n al-nuzul) of this ayah supports this
interpretation. (The ayah was revealed in refutation of the unbelievers who claimed that the Qur'an was
the work of the Prophet himself and not the speech of God.) Besides, the Prophet often resorted to
reasoning by way of analogy and ijtihad, and did not postpone all matters until the reception of divine
revelation


The minority view on this subject overrules the claim of the practice of ijtihad by the Prophet and
maintains that if it were true that the Prophet practiced ijtihad, then disagreeing with his views would be
permissible. For it is a characteristic of ijtihad to allow disagreement and opposition. Opposing the
Prophet is, however, clearly forbidden, and obedience to him is a Qur'anic duty upon every Muslim (al-
Nisa', 4:14 and 58).


There is yet a third opinion on this point which, owing to the conflicting nature of the evidence, advises
total suspension. This view is attributed to al-Shafi'i and upheld by al-Baqillani and al-Ghazali. Al-
Shawkani, however, rejects it by saying that the Qur'an gives us clear indications not only to the effect
that ijtihad was permissible for the Prophet but also that he was capable of making errors.

The majority view that the Prophet resorted to ijtihad finds further support in the Sunnah. Thus,
according to one Hadith, the Prophet is reported to have said, `When I do not receive a revelation
(wahy) I adjudicate among you on the basis of my opinion (ra'y).'


The next point to be raised in this connection is whether ijtihad was lawful for the Companions during
the lifetime of the Prophet. Once again the majority of ulema have held that it was, regardless as to
whether it took place in the presence of the Prophet or in his absence. The ulema have, however,
differed over the details. Ibn Hazm held that such an ijtihad is valid in matters other than the halal and
haram, whereas al-Amidi and Ibn al-Hajib have observed that it is only speculative and does not
establish a definitive ruling. There are still others who have held that ijtihad was lawful for the
Companions only if it took place in the presence of the Prophet, with his permission, or if the Prophet
had approved of it in some way. Those who invalidate ijtihad for the Companions during the lifetime of
the Prophet maintain that the Companions had access to the Prophet in order to obtain the necessary
authority, which would be decisive and final. If one is able to obtain a decisive ruling on a juridical
matter, ijtihad which is merely a speculative exercise is unlawful.


Truth and Fallacy of Ijtihad
The jurists have differed as to whether every mujtahid can be assumed to be right in his conclusions, or
whether only one of several solutions to a particular problem may be regarded as true to the exclusion
of all others. At the root of this question lies the uncertainty over the unity or plurality of truth in
ijtihad. Has Almighty God predetermined a specific solution to every issue, which alone may be
regarded as right? If the answer to this is in the affirmative then it will follow that there is only one
correct solution to any juridical problem and that all others are erroneous. This would in turn beg the
question of whether it is at all possible for the mujtahid to commit a sin by rendering an erroneous
ijtihad. In the face of the Hadith which promises a spiritual reward to every mujtahid regardless of the
accuracy of his conclusions, plus the fact that he is performing a sacred duty-is it theoretically possible
for a mujtahid to commit a sin?
The ulema are in agreement that in regard to the essentials of dogma, such as the oneness of God
(tawhid), His attributes, the truth of the Prophethood of Muhammad, the hereafter, and so on, there is
only one truth and anyone, whether a mujtahid or otherwise, who takes a different view automatically
renounces Islam.

With regard to juridical or shar'i matters, the majority of ulema, including the Ash'aris and the
Mu`tazilah, recognise two types:


1) Juridical matters which are determined by a clear and definitive text, such as the obligatoriness of
salah and other pillars of the faith, the prohibition of theft, adultery, and so on. In regard to these
matters, once again, there is only one truth with which the mujtahid may not differ. Anyone who takes
an exception to it commits a sin, and according to some, even heresy and disbelief.
2) Shar'i matters on which no decisive ruling is found in the sources. There is much disagreement on
this. The Ash'aris and the Mu'tazilah have held the view that ijtihad in regard to such matters is always
meritorious and partakes in truth regardless of the nature of its results. But according to the four leading
imams and many other ulema, only one of the several opposing views on a particular issue may be said
to be correct. For it is impossible to say that one and the same thing at the same time regarding the same
person could be both lawful and unlawful.





This view has quoted
in support the Qur'anic text where in reference to the two judgements of David and Solomon on one and
the same issue, God validated only one. The text runs:
And when David and Solomon both passed judgement on the field where some people's sheep had
strayed to pasture there at night, We acted as Witnesses for their decision. We made Solomon
understand it. To each We gave discretion and knowledge [ ...] (al-Anbiya', 21:78-79).
Had there been more than one correct solution to a juridical problem, then this ayah would have upheld
the judgements both of David and Solomon. It is thus suggested that this ayah confirms the unitary
character of truth in ijtihad. Furthermore, when one looks at the practice of the Companions, it will be
obvious that not only did they admit the possibility of error in their own judgements but that then also
criticised one another. If all of them were to be right in their ijtihad, there would be no point in their
criticising one another or in admitting the possibility of error in their own ijtihad. To give an example,
the Caliph Abu Bakr is reported to have said in regard to the issue of kalalah (i.e. when the deceased
leaves no parent or child to inherit him): 'I decided the question of kalalah according to my opinion. If it
is correct, it is an inspiration from God; if it is wrong, then the error is mine and Satan's:


It is further reported that when `Umar b. al-Khattab adjudicated a case, one of
the parties to the dispute who was present at the time said, 'By God this is the truth.' To this the caliph
replied that he did not know whether he had attained the truth, but that he had spared no effort in
striving to do so.


These differences may be resolved, as the majority of ulema suggest, in the light of the celebrated
Hadith, which we quote again: 'When a judge renders ijtihad and gives a right judgement, he will have
two rewards, but if he errs, he will still have earned one reward.' This Hadith clearly shows that the
mujtahid is either right (musib), or in error (mukhti'), that some mujtahidun attain the truth while others
do not; but that sin attaches to neither as they are both rewarded for their efforts. Hence anyone who
maintains that there are as many truths as there are mujtahids is clearly out of line with the purport of
this Hadith. If every mujtahid were supposed to be right, then the division of mujtahids into two types
in this Hadith would have no meaning.



Classification and Restrictions
In their drive to impose restrictions on ijtihad, the ulema of usul of the fifth/eleventh century and the
subsequent period classified ijtihad into several categories. Initially it was divided into two types:
firstly, ijtihad which aims at deducing the law from the evidence in the sources, often referred to as
'independent ijtihad'; and secondly, ijtihad which is concerned mainly with the elaboration and
implementation of the law within the confines of a particular school, known as `limited ijtihad'. During
the first two and a half centuries of Islam, there was never any attempt at denying a scholar the right to

find his own solutions to legal problems. It was only at a later period that the question of who was
qualified to practice ijtihad was raised. From about the middle of the third/ninth century, the idea began
to gain currency that only the great scholars of the past had enjoyed the right to practice ijtihad.

This was the beginning of what came to be known as the `closure of
the gate of ijtihad'. Before the fifth/eleventh century, no trace may be found of any attempt to classify
ijtihad into categories of excellence. Al-Ghazali (d. 505/1111) was the first to divide ijtihad into two
categories, as noted above.

1) Full Mujtahid (mujtahid fi'l-shar'). This rank is assigned to chose who fulfilled all the requirements
of ijtihad. They deduced the ahkam from the evidence in the sources, and in so doing were not
restricted by the rules of a particular madhhab. The learned among the Companions, and the leading
jurists of the succeeding generation, like Sa`id b. al-Musayyib and Ibrahim al-Nakha'i, the leading
Imams of the four schools, the leading Imams of the Shi'ah Muhammad al-Baqir and his son ja'far al-
Sadiq, al-Awza'i and many others were identified as independent mujtahids. It is by the authority of
these that consensus of opinion, analogy, juristic preference, maslahah mursalah, etc., were formulated
and established as the secondary proofs of Shari'ah.

Although Abu Yusuf and al-Shaybani are usually subsumed under the second rank,
Abu Zahrah, who has written extensively on the lives and works of the leading ulema, regards them as
full mujtahids. The criteria of distinguishing the first from the second class of mujtahidun is originality
and independent thought. If this is deemed to be the case the mere fact that a mujtahid has concurred
with the opinion of another is immaterial in the determination of his rank. For many of the leading
mujtahids are known to have concurred with the views of other ulema. For example, it is known that
Abu Hanifah on many occasions agreed with and followed the views of his teacher Ibrahim al-Nakha'i,
but this was only because he was convinced of the accuracy of his reasoning, and not out of imitation
for its own sake.

Since the successful pursuit of truth is not possible without knowledge, the survival of mujtahidun in
any given age (`asr) is therefore sustained by this Hadith. Furthermore, according to some ulema, the
duty to perform ijtihad is not fulfilled by means of limited ijtihad or by practicing the delivery of fatwa
alone. According to the Hanbalis, the claim that ijtihad has discontinued is to be utterly rejected. Ijtihad
is not only open, but no period may be without a mujtahid. The Shi'ah Imamiyyah have held the same
view. The Shi'ah, however, follow their recognised Imams, in whose absence they may exercise ijtihad
on condition that they adhere, both in principle and in detail, to the rulings of the Imams. In the absence
of any ruling by the Imams, the Shi'ah recognise `aql as a proof following the Qur'an, the Sunnah, and
the rulings of their Imams.









2) Mujtahids within the School. These are jurists who expounded the law within the confines of a
particular school while adhering to the principles laid down by their Imams. Among the prominent
names that feature in this category are Zafar b. al-Hudhayl, Hasan b. Ziyad in the Hanafi school; Isma'il
b. Yahya al-Muzani, 'Uthman Taqi al-Din b. al-Salah and Jalal al-Din al-Suyuti in the Shafi'i; Ibn `Abd
al-Barr and Abu Bakr b. al-`Arabi in the Maliki, and Ibn Taymiyyah and his disciple Ibn Qayyim al-
Jawziyyah in the Hanbali schools. It is observed that although these ulema all followed the doctrines of
their respective schools, nevertheless they did not consider themselves bound to follow their masters in
the implementation of the general principles or in arguments concerning particular issues. This is borne
out by the fact that they have held opinions that were opposed to those of their leading Imams.


3) Mujtahids on Particular Issues. These are jurists who were competent to elucidate and apply the law
in particular cases which were not settled by the jurists of the first and second ranks. They did not
oppose the leading mujtahidun and generally followed the established principles of their schools. Their
main pre-occupation was to elaborate the law on fresh points which were not clearly determined by the
higher authorities. Scholars like Abu'l-Hasan al-Karkhi and Abu Ja'far al-Tahawi in the Hanafi school,
Abu al-Fadl al-Marwazi and Abu Ishaq al-Shirazi in the Shafi'i, Abu Bakr al-Abhari in the Maliki and
'Amr b. Husayn al-Khiraqi in the Hanbali schools have been placed it this category.
All the preceding three classes were designated as mujtahids, but the remaining four classes of ulema,
as described below have been classified as imitators.


4) The so-called ashab al-takhrij, who did not deduce the ahkam but were well conversant in the
doctrine and were able to indicate which view was preferable in cases of ambiguity, or regarding
suitability to prevailing conditions.


5) The ashab al-tarjih are those who were competent to make comparisons and distinguish the correct
(sahih) and the preferred (rajih, arjah) and the agreed upon (mufta biha) views from the weak ones.
Authors like 'Ala' al-Din al-Kasani and Burhan al-Din al-Marghinani of the Hanafi school, Muhyi al-
Din al-Nawawi of the Shafi'i, Ibn Rushd al-Qurtubi of the Maliki and Muwaffaq al-Din ibn Qudamah of
the Hanbali schools and their equals have been placed in this category.

6) The so-called ashab al-tashih: those who could distinguish between the manifest (zahir al-riwayah)
and the rare and obscure (al-nawadir) views of the schools of their following. Textbook writers whose
works are in use in the various madhahib are said to fall into this category.

7) And finally the muqallidun, or the `imitators', who lack the abilities of the above and comprise all
who do not fall in any of the preceding classes. It is said concerning them that, They do not distinguish
between the lean and the fat, right and left, but get together whatever they find, like the one who gathers
wood in the dark of the night.

Conclusion
The conditions under which ijtihad was formerly practiced by the ulema of the early periods are no
longer what they were. For one thing, the prevalence of statutory legislation as the main instrument of
government in modern times has led to the imposition of further restrictions on ijtihad. The fact that the
law of the land in the majority of Islamic countries has been confined to the statute book, and the
parallel development whereby the role of interpreting the statute has also been assigned to the courts of
law, has had, all in all, a discouraging effect on ijtihad. The mujtahid is given no recognised status, nor
is he required to play a definite role in legislation or the administration of justice in the courts. This is
confirmed by the fact that many modern constitutions in Islamic countries are totally silent on ijtihad. It
was this total neglect of ijtihad which prompted Iqbal to propose, in his well-known work 'The
Reconstruction of Religious Thought in Islam, that the only way to utilise both ijma` and ijtihad (which
he refers to as the 'principle of movement') into the fabric of modern government is to institutionalise
ijtihad by making it an integral feature of the legislative function of the state

Essentially the same view has been put forward by al-Tamawi, who points out that ijtihad by
individuals in the manner that was practiced by the fuqaha' of the past is no longer suitable to modern
conditions. The revival of ijtihad in our times would necessitate efforts which the government must
undertake. Since education is the business and responsibility of modern governments, it should be
possible to provide the necessary education and training that a mujtahid would need to possess, and to
make attainment to this rank dependent on special qualifications. Al-Tamawi further recommends the
setting up of a council of qualified mujtahids to advise in the preparation and approval of statutory law
so as to ensure its harmony with Shari'ah principles.

This is, of course, not to say that the traditional forms of learning in the Shari`ah disciplines, or of the
practice of ijtihad, are obsolete. On the contrary, the contribution that the ulema and scholars can make,
in their individual capacities, to the incessant search for better solutions and more refined alternatives
should never be underestimated. It is further hoped that, for its part, government will also play a
positive role in preserving the best heritage of the traditional modes of learning, and encourage the
ulema to enhance their contribution to law and development. The universities and legal professions in
many Islamic countries are currently committed to the training of lawyers and barristers in the modern
law stream. To initiate a comprehensive and well-defined programme of education for prospective
mujtahids, which would combine training in both the traditional and modern legal disciplines, would
not seem to be beyond the combined capabilities of universities and legal professions possessed of
long-standing experience in Islamic legal education.
Furthermore, in a Shari'ah-oriented government it would seem desirable that the range of selection to
senior advisory, educational and judicial posts would include the qualified mujtahidun. This would
hopefully provide the basis for healthy competition and incentives for high performance among the
candidates, and help to create a definite role for them in the various spheres of government.































Short Note on Ijma

IJMA
It must be noted at the outset that unlike the Qur'an and Sunnah, ijma does not directly partake in divine
revelation. As a doctrine and proof of Shari'ah, ijma' is basically a rational proof. The theory of ijma' is
also clear on the point that it is a binding proof. But it seems that the very nature of this high status that
is accorded to ijma` has demanded that only an absolute and universal consensus would qualify
although absolute consensus on the rational content of ijma' has often been difficult to obtain. It is only
natural and reasonable to accept ijma` as a reality and a valid concept in a relative sense, but factual
evidence falls short of establishing the universality of ijma`. The classical definition and the essential
requirements of ijma`, as laid down by the ulema of usul, are categorical on the point that nothing less
than a universal consensus of the scholars of the Muslim community as a whole can be regarded as
conclusive ijma'. There is thus no room whatsoever for disagreement, or ikhtilaf, within the concept of
ijma'. The theory of ijma' is equally unreceptive to the idea of relativity, or a preponderance of
agreement within its ranks.
The notion of a universal ijma ` was probably inspired by the ideal of the political unity of the ummah,
and its unity in faith and tawhid, rather than total consensus on juridical matters. As evidence will show,
ijma' on particular issues, especially on matters that are open to ijtihad, is extremely difficult to prove.
Thus the gap between the theory and practice of ijma` remains a striking feature of this doctrine. A
universal ijma` can only be said to exist, as al-Shafi'i has observed, on the obligatory duties, that is, the
five pillars of the faith, and other such matters on which the Qur'an and the Sunnah are unambiguous
and decisive. However, the weakness of such an observation becomes evident when one is reminded
that ijma` is redundant in the face of a decisive ruling of the Qur'an or the Sunnah.
The Shari'ah has often been considered as `a diversity within unity'. This is true in a general sense, in
that there is unity to the essentials and in the broad outlines of the ahkam. But the same cannot be said
of the detailed rulings of the jurists. It is admittedly true to say, again in a general sense, that the ikhtilaf
of individual jurists, or of the various schools of law, are different manifestations of the same divine
will and may therefore be regarded as an essential unity. But to expect universal consensus on ijtihadi
matters is totally unrealistic, as many prominent ulema have recognised.
The gap between the theory and practice of ijma` is reflected in the difficulty that many jurists have
acknowledged to exist over implementing its theoretical requirements. The absolute terms of the
classical definition of ijma` have hardly been fulfilled by conclusive factual evidence that would
eliminate all levels of ikhtilaf. Ijma' has often been claimed for rulings on which only a majority
consensus had existed within or beyond a particular school. The proof and authenticity of ijma ` has, on
the other hand, not received the kind of attention that has been given to the authentication of Hadith
through a reliable isnad. The only form of ijma' which has been generally upheld is that of the
Companions of the Prophet, which is partly due to their special status and not always due to their
participation and consensus. With these introductory remarks, then, we may begin to examine the
meaning and definition of ijma', and then proceed to discuss some of the issues we have raised.

Meaning of Ijma
Ijma` is the verbal noun of the Arabic word ajma'a, which has two meanings: to determine, and to agree
upon something. To give an example of the former, the expression ajma `a fulan `ala kadha, means `soand-
so decided upon such-and-such'. This usage of ajma`a is found both in the Qur'an and in the
Hadith.[1. In the Qur'an the phrase fajma'u amrakum which occurs in sura Yunus (10:71) means 'determine your plan'. Similarly fajma'u kaydakum in sura
Taha (20:64), where the Prophet Noah addresses his estranged followers, means 'determine your trick'. The Hadith la siyama liman lam yajma'al-siyama min allayl
means that fasting is not valid unless it is determined (or intended) in advance; i.e. from the night before. 
The other meaning of ajma'a is `unanimous agreement'. Hence the phrase ajma'a al-qawm ala
kadha means `the people reached a unanimous agreement on such-and-such'. The second meaning of
ijma` often subsumes the first, in that whenever there is a unanimous agreement on something, there is
also a decision on that matter.

Essential Requirements (Arkan) of Ijma`
Whenever an issue arises and attracts the attention of the mujtahidun of the Muslim community at the
time of its incidence, and they reach a unanimous agreement on its ruling, it is implied that the ruling so
agreed upon is the correct and authoritative ruling of the Shari'ah, provided that the following
conditions are fulfilled:
1. That there are a number of mujtahidun available at the time when the issue is encountered. For
consensus can never exist unless there is a plurality of concurrent opinion. Should there be a
situation where a plurality of mujtahidun could not be obtained, or when there is only a single
mujtahid in the community, no ijma' could be expected to materialise.
2. According to the majority of ulema, unanimity is a prerequisite of ijma`. All the mujtahidun,
regardless of their locality, race, colour and school or following, must reach a consensus on a
juridical opinion at the time an issue arises. The presence of a dissenting view, even on the part
of a small minority, precludes the possibility of ijma`. If, for example, the mujtahidun of Mecca
and Madinah, or those of Iraq, or the mujtahidun of the family of the Prophet, or the Sunni
ulema without the agreement of their Shi'i counterparts agree upon a ruling, no ijma' will
materialise.
The majority of ulema maintain that lay opinion is not taken into account: in every field of
learning, only the opinion of the learned is relevant to ijma`. Al-Amidi, however, prefers the
minority view, attributed to Abu Bakr al-Baqillani and others, to the effect that ijma' includes
the agreement of both the laymen and the mujtahidun, the reason being that 'ismah, which is the
doctrinal basis of ijma `, is a grace of God bestowed on the whole of the community. It would
therefore be improper to turn the property of the entire community into a privilege of the
mujtahidun. The majority view is, however, based on the analysis that the mujtahidun, in their
capacity as the constituents of ijma`, merely represent the community, and therefore no change
is proposed in the original locus of 'ismah however, distinguishes matters which do not
require specialised knowledge from other matters, and suggests that no discrimination should be made between the layman and the jurists regarding
the essentials of the faith. Ijma` is thus confined to the mujtahidun only in regard to matters which require expert knowledge.
3. The agreement of the mujtahidun must be demonstrated by their expressed opinion on a
particular issue. This may be verbal or in writing, such as by giving a fatwa in either of these
forms, or it may be actual, when, for example, a judge adjudicates the issue in question; or it
may be that every mujtahid expresses an opinion, and after gathering their views, they are
found to be in agreement. Similarly the mujtahidun may give their views collectively when, for
example, the mujtahidun of the Muslim world assemble at the time an issue is encountered and
reach a consensus over its ruling.
4. As a corollary of the second condition above, ijma' consists of the agreement of all the
mujtahidun, and not a mere majority among them. For so long as a dissenting opinion exists,
there is the possibility that one side is in error, and no ijma' can be envisaged in that situation,
for ijma' is a decisive proof, which must be founded on certainty. However, according to Ibn
Jarir al-Tabari, Abu Bakr al-Razi, one of the two views of Ahmad Ibn Hanbal and Shah Wali
Allah, ijma' may be concluded by a majority opinion. But al-Asmidi prefers the majority view
on this point, which requires the participation of all mujtahidun..
In regard to the rules of fiqh, it is the ijma' of the fuqaha alone which is taken into account The question naturally arises whether fuqaha belonging to certain factions like the Khawarij,
the Shi'ah, or those who might have been charged with heresy and bid'ah are qualified to participate in
ijma`. According to the majority view, if a faqih is known to have actively invited the people to bid'ah,
he is excluded from ijma' ;
otherwise he is included in the ranks of ahl al-ijma'.The Hanafis preclude a
transgressor (fasiq) and one who does not act upon his doctrine from being among the ahl al ijma`,
whereas the Shafi'is and some Malikis maintain that a mere transgression is no disqualification.

Ijma' in the Qur'an:
The Qur'an (al-Nisa', 4:59) is explicit on the requirement of obedience to God, to His Messenger, and
`those who are in charge of affairs', the ulu al amr.[23. The ayah (4:59) provides: 'O you who believe, obey God, and obey the
Messenger, and those charged with authority among you.'] It is also suggested that this ayah lends support to the infallibility
of ijma`. According to al-Fakhr al-Razi, since God has commanded obedience to the ulu al-amr, the
judgement of the ulu al-amr must therefore be immune from error. For God cannot command obedience
to anyone who is liable to committing errors. The word `amr' in this context is general
and would thus include both secular and religious affairs. The former is discharged by the political
rulers, whereas the latter is discharged by the ulema. According to a commentary attributed to Ibn
'Abbas, ulu al-amr in this ayah refers to ulema, whereas other commentators have considered it to be a
reference to the umara , that is, 'rulers and commanders'. The zahir of the text includes both, and
enjoins obedience to each in their respective spheres. Hence, when the ulu al-amr in juridical matters,
namely the mujtahidun, reach a consensus on a ruling, it must be obeyed.
Further support for this conclusion can be found elsewhere in sura al-Nisa' (4:83) which once again
confirms the authority of the ulu al-amr next to the Prophet himself.[ The ayah (4:83) provides: `If they would only refer
it to the Messenger and those among them who hold command, those of them who investigate matters would have known about it.'
The one ayah which is most frequently quoted in support of ijma' occurs in sura al-Nisa' (4:115), which
is as follows:
''And anyone who splits off from the Messenger after the guidance has become clear to
him and follows a way other than that of the believers, We shall leave him in the path
he has chosen, and land him in Hell. What an evil refuge!''
Al-'Imran (3:102):`Cling firmly together to God's rope and do not separate.
Al-Shura (42:10):'And in whatever you differ, the judgment remains with God', 'which
implicitly approves that in which the community is in agreement.'
Al-Nisa' (4:59): `Then if you dispute over something, refer it to God and the
Messenger.'

 The Sunnah on Ijma `
The Hadith which is most frequently quoted in support of ijma' reads:
''`My community shall never agree on an error.''
The last word in this Hadith, namely al-dalalah,
is rendered in some reports as al-khata.' The jurists have used the two words interchangeably, but in the
classical Hadith collections this Hadith has been recorded with the word al-dalalah.
Al-Ghazali has pointed out that this Hadith is not mutawatir, and as such, it is not an
absolute authority like the Qur'an. The Qur'an on the other hand is mutawatir but contains no nass on
ijma`. Having said this, however, al-Ghazali adds that a number of prominent Companions have
reported ahadith from the Prophet, which although different in their wording, are all in consonance on
the theme of the infallibility of the community and its immunity from error.
Leading figures among the Companions such as 'Umar b. al-Khattab, `Abdullah b. Mas'ud, Anas b.
Malik. `Abdullah b. Umar, Abu Said al-Khudri, Abu Hurayrah, Hudhayfah and others have reported
ahadith which include the following:
1. My community shall never agree upon an error (al-khata'):
2. God will not let my community agree upon an error:
3. I beseeched Almighty God not to bring my community to the point of agreeing on
dalalah and He granted me this:
4. Those who seek the joy of residing in Paradise will follow the community. For Satan
can chase an individual but he stands farther away from two people:
5. The hand of God is with the community and (its safety) is not endangered by isolated
oppositions:
6. Whoever leaves the community or separates himself from it by the length of a span
is breaking his bond with Islam:
7. A group of my ummah shall continue to remain on the right path. They will be the
dominant force and will not be harmed by the opposition of opponents:
8. Whoever separates himself from the community and dies, dies the death of ignorance
(jahiliyyah):
9. And finally, the well-known saying of 'Abdullah bin. Mas'ud which is as follows:
'Whatever the Muslims deem to be good is good in the eyes of God.

Feasibility of Ijma'
A number of ulema, including the Mu'tazili leader Abraham al-Nazism and some Shi'i ulema, have held
that ijma` in the way defined by the jumhur ulema is not feasible. To ascertain the consensus of the
ulema on any matter which is not obvious is just as impossible as their unanimity at any given moment
on what they utter and what they eat. It may be possible to ascertain the
broad outline of an agreement among the mujtahidun on a particular matter, but to say that their
consensus could be ascertained in such a way- as to impart positive knowledge is not feasible. Since the
mujtahidun would normally be located in distant places, cities and continents, access to all of them and
obtaining their views is beyond the bounds of practicality. Difficulties are also encountered in
distinguishing a mujtahid from a non-mujtahid. Since it is the mujtahidun whose consensus constitutes
ijma`, one must be able to identify them with certainty. Apart from the absence of clear criteria
concerning the attributes of a mujtahid, there are some among them who have not achieved fame. Even
granting that they could be known and numbered, there is still no guarantee to ensure that the mujtahid
who gives an opinion will not change it before an ijma` is reached. So long as this is possible, no ijma`
can be realised, for it is a condition of ijma' that all the mujtahidun be simultaneously in agreement.
It is mainly due to these reasons that al-Shafi'i confines the occurrence of ijma` to the
obligatory duties alone as he considers that on matters other than these, ijma' is not a realistic
proposition at all.

Types of Ijma
From the viewpoint of the manner of its occurrence, ijma` is divided into two types:
a. Explicit ijma` (al-ijma' al-sarih) in which every mujtahid expresses his opinion either verbally
or by an action; and

b. Tacit ijma`(al-ijma `al-sukuti) whereby some of the mujtahidun of a particular age give an
expressed opinion concerning an incident while the rest remain silent.

According to the jumhur ulema, explicit ijma' is definitive and binding. Tacit ijma' is a presumptive
ijma' which only creates a probability (zann) but does not preclude the possibility of fresh ijtihad on the
same issue. Since tacit ijma` does not imply the definite agreement of all its participants, the ulema
have differed over its authority as a proof. The majority of ulema, including al-Shafi'i, have held that it
is not a proof and that it does not amount to more than the view of some individual mujtahidun. But the
Hanafis have considered tacit ijma` to be a proof provided it is established that the mujtahid who has
remained silent had known of the opinion of other mujtahidun but then, having had ample time to
investigate and to express an opinion, still chose to remain silent. If it is not known that the silence was
due to fear or taqiyyah (hiding one's true opinion), or wariness of inviting disfavour and ridicule, then
the silence of a mujtahid on an occasion where he ought to express an opinion when there was nothing
to stop him from doing so would be considered tantamount to agreeing with the existing opinion.

The proponents of tacit ijma' have further pointed out that explicit agreement or open speech by all the
mujtahidun concerning an issue is neither customary nor possible. In every age, it is the usual practice
that the leading ulema give an opinion which is often accepted by others. Suppose that the entire
ummah gathered in one place and shouted all at once saying that, 'we agree on such-and-such'. Even if
this were possible, it would still not impart positive knowledge. For some of them might have remained
silent due to fear, uncertainty, or taqiyyah.
Further, the Hanafis draw a distinction between the `concession' (rukhsah) and 'strict rule' (azimah), and
consider tacit ijma' to be valid only with regard to the former. In order to establish a strict role, ijma`
must be definitely stated or expressed by an act. The Hanafis are alone in validating tacit ijma`. The
Zahiris refuse it altogether, while some Shafi'is like al-Juwayni, al-Ghazali and al-Amidi allow a with certain reservations. 'It is ijma`, al-Ghazali tells us, 'provided that the tacit agreement is accompanied by indications of approval on the part of those who are silent.

The majority opinion on this matter is considered to be preferable. For the silence of a mujtahid could
be due to a variety of factors, and it would be arbitrary to lump them all together and say that silence
definitely indicates consent. But despite the controversy it has aroused, tacit ijma' is by no means an
exceptional case. On the contrary, it is suggested that most of what is known by the name of ijma' falls
under this category.

The next topic that needs to be taken up in this context is the 'Madinese consensus', or ijma' ahl al-
Madinah.
According to the Maliki ulema, since Madinah was the centre of Islamic teaching, the 'abode of hijrah'
(dar al-hijrah) and the place where most of the Companions resided, the consensus of its people is
bound to command high authority. Although the majority of ulema have held that the Madinese ijma`is
not a proof on its own, Imam Malik held that it is. There is some disagreement among the disciples of
Malik as to the interpretation of the views of their Imam. Some of these disciples have observed that
Imam Malik had only meant that the ijma` of the people of Madinah is a proof 'from the viewpoint of
narration and factual reporting' (min jihah al-naql wa'l-riwayah) as they were closest to the sources of
the Shari'ah. Other Maliki jurists have held that Malik only meant the Madinese ijma' to be preferable
but not exclusive. There are still others who say that Malik had in mind the ijma' of the Companions
alone. The proponents of the Madinese
ijma` sought to substantiate their views
with ahadith which include the following: 'Madinah is sacred, and throws out its dross as fire casts out
the dross of metal,' and 'Islam will cling to Madinah as a serpent clings to its hole.Shahi Muslim, Hadith no.38
Ibn Hazm discusses ijma' ahl al-Madinah in some length, but cites none of the ahadith that
are quoted by Amidi and others. He merely points out that some of the ahadith which are quoted in support of the Maliki doctrine are authentic (sahih), while
others are mere fabrications (makdhub/ mawdu`) reported by one 'Muhammad ibn Hasan ibn Zabalah'.

The majority of jurists, however, maintain that these ahadith merely speak of the dignity of Madinah
and its people. Even if the ahadith are taken to rule out the presence of impurity in Madinah, they do
not mean that the rest of the ummah is impure, and even less that the Madinese ijma' alone is
authoritative. Had the sacred character of a place been a valid criterion, then one might say that the
consensus of the people of Mecca would command even greater authority, as Mecca is the most
virtuous of cities (afdal al-bilad) according to the nass of the Qur'an. Furthermore, knowledge and
competence in ijtihad are not confined to any particular place. This is the purport of the Hadith in which
the Prophet said: 'My Companions are like stars. Whomsoever of them that you follow will guide you
to the right path.'

This Hadith pays no attention whatsoever to the place where a Companion might have resided.To this analysis, Ibn Hazm adds the point that there were, as we learn from the Qur'an,
profligates and transgressors (fussaq wa'l-munafiqun) in Madinah just like other cities. The
Companions were knowledgeable in the teachings of the Prophet wherever they were, within or outside
Madinah, and staying in Madinah by itself did not necessarily enhance their standing in respect of
knowledge, or the ability to carry out ijtihad.

Basis (Sanad) of Ijma`
According to the majority if ulema, ijma` must be founded in a textual authority or in ijtihad. Al-Amidi
points out that it is unlikely that the ummah might reach unanimity over something that has no
foundation in the sources.The ulema are in agreement that ijma `may be based on the Qur'an or the Sunnah. There is, however, disagreement as to whether ijma' can be based on a ruling in
the secondary proofs such as qiyas or maslahah.

There are three views on this point, the first of which is that ijma` may not be founded on qiyas, for the
simple reason that qiyas itself is subject to a variety of doubts. Since the authority of qiyas as a proof is
not a subject on which the ulema are in agreement, how then could ijma` be founded on it? It is further
noted that the Companions did not reach a consensus on anything without the authority of the Qur'an or
the Sunnah. In all cases in which the Companion are known to have reached a consensus, at the root of
it there has been some authority in the primary sources.

The second view is that qiyas in all of its varieties may form the basis of consensus. For qiyas itself
consists of an analogy to the nass. Relying on qiyas is therefore equivalent to relying on the nass, and
when ijma` is based on a qiyas, it relies not on the personal views of the mujtahidun but on the nass of
the Shari'ah.

The third view on this subject is that when the effective cause (`illah) of qiyas is clearly stated in the
nass, or when the 'illah is indisputably obvious, then qiyas may validly form the bases of ijma'. But
when the 'illah of qiyas is hidden and no clear indication to it can be found in the nusus, then it cannot
form a sound foundation for ijma'. Abu Zahrah considers this to be a sound opinion: when the `illah of
qiyas is indicated in the nusus, reliance on qiyas is tantamount to relying on the nass itself.

Instances could be cited of ijma` which is founded upon analogy. To give an example, a father is
entitled to guardianship over the person and property of his minor child. By ijma' this right is also
established for the grandfather regarding his minor grandchild. This ruling of ijma` is founded upon an
analogy between the father and grandfather. A similar example is given regarding the assignment of
punishment for wine drinking (shurb). This penalty is fixed at eighty lashes, and an ijma' has been
claimed in its support. When the Companions were deliberating the issue, `Ali b. Abi Talib drew an
analogy between shurb and slanderous accusation (qadhf). Since shurb can lead to qadhf, the prescribed
penalty for the latter was, by analogy, assigned to the former. The alleged ijma` on this point has,
however, been disputed in view of the fact that 'Umar b. al-Khattab determined the hadd of shurb at
forty lashes, a position which has been adopted by Ahmad b. Hanbal. To claim an ijma' on this point is
therefore unwarranted.

Transmission of Ijma`
The issue to be examined here is the nature of the evidence by which the fact that a particular question
has been determined by ijma' may be proved. From this perspective, ijma' is divided into two types,
namely 'acquired' (muhassal) and `transmitted' (manqul). The first is concluded with the direct
participation of the mujtahid without the mediation of reporters or transmitters. The mujtahid thus gains
direct knowledge of the opinions of other mujtahidun when they all reach a consensus on a ruling. But
transmuted ijma' is established by means of reports which may either be solitary (ahad) or conclusive
(mutawatir). In the case of transmission by tawatur there is no problem of proof, and ijma' which is
transmitted by tawatur is proven in the same way as acquired ijma'. But there is disagreement regarding
ijma' which is transmitted by way of solitary reports. Al-Ghazali points out that a solitary report is not
sufficient to prove ijma', although some fuqaha have held otherwise. The reason is that ijma' is a
decisive proof whereas an ahad report amounts to no more than speculative evidence; thus, it cannot
establish ijma'.

Al-Amidi explains that a number of the ulema of the Shafi'i, Hanafi and Hanbali schools validate the
proof of ijma' by means of solitary reports whereas another group of Hanafi and Shafi'i ulema do not.
All have nevertheless agreed that anything which is proved by means of a solitary report is speculative
of proof (thubut) even if definitive in respect of content (matn).

Proof by means of tawatur can only be claimed for the ijma` of the Companions; no other ijma' is
known to have been transmitted by tawatur. This is the main reason why the fuqaha have differed in
their views concerning any ijma` other than that of the Companions. A large number of the ulema of
usul have maintained that transmission through solitary reports amounts to speculative evidence only.
When ijma' is based on such evidence, it loses its value and the hukm for which ijma` is claimed must
be referred back to the source from which it was derived in the first place.

Reform Proposals
The modern critics of ijma' consider that ijma' according to its classical definition fails to relate to the
search for finding solutions to the problems of the community in modern times. Ijma` is hence
retrospective and too slow a process to accommodate the problems of social change. These and other
considerations concerning the relevance of ijma` to social realities have prompted a response from
modern scholars. We have already discussed the view of `Abd al-Wahhab Khallaf in regard to the
feasibility of ijma`. Khallaf, however, was not the first to criticise ijma'.

An early- critique of ijma' was advanced by Shah Wali Allah Dihlawi (1176/1762), who tried to
bring ijma` closer to reality and came out in support of `relativity' in the concept of ijma`. Dihlawi
overruled the notion of universal consensus in favour of relative ijma`. Dihlawi is also critical of the
interpretation that is given to the ahadith concerning ijma`. He argues that the Hadith, `My community
shall never agree upon an error' did not envisage ijma` at all. Hence the correct meaning of this Hadith
may be determined in the light of another Hadith which provides that `a section of my community will
continue to remain on the right path.
Ijma` in other words does not mean a universal agreement but
only the consensus of a limited number of mujtahidun. With regard to the other ahadith that are quoted
in support of ijma`, Dihlawi maintains that the two principal aims of these ahadith are the political unity
of the ummah, and the integrity of the Shari'ah. The same author maintains that ijma' can be justified on
the bases of all such ahadith that protect the unity and integrity of the community. But he adds that
ijma` has never been meant to consist of the universal agreement of every member of the community
(or of every learned member of the community for that matter), as this is plainly impossible to achieve.
It has neither happened in the past nor could it conceivably happen in the future. Ijma', according to
Shah Wali Allah, is the consensus of the ulema and men of authority in different towns and localities. In
this sense, ijma' can be held anywhere at any time. The ijma' of the Companions during the caliphate of
Umar b. al-Khattab, and the ijma` that was concluded in Mecca and Madinah under the pious caliphs,
are all examples of ijma` in its relative sense.

Muhammad Iqbal is primarily concerned with the question of how to utilise the potentials of ijma` in
the process of modern statutory legislation. He considers it an important doctrine, but one which has
remained largely theoretical. `It is strange,' Iqbal writes, that this important notion 'rarely assumed the
form of a permanent institution'. He then suggests that the transfer of the power of ijtihad `from
individual representatives of schools to a Muslim legislative assembly is the only possible form
ijma` can take in modern times'.
In such an assembly, the ulema should play a
vital part, but it must also include in its ranks laymen who happen to possess a keen insight into affairs.
Furthermore Iqbal draws a distinction between the two functions of ijma', namely:
Discovering the law and implementing the law. The former function is related to the
question of facts and the latter relates to the question of law. In the former case, as for
instance, when the question arose whether the two small suras known as
'Mu'awwazatain' formed part of the Qur'an 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 latter 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 decisions of the Companions.
Iqbal goes on to quote the Hanafi jurist Abu'l-Hasan al-Karkhi as saying: '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'.

It is thus clear that Iqbal retains the binding character of ijma' only insofar as it relates to points of fact,
but not with regard to ijma' that is based on juridical ijtihad. This distinction between the factual and
juridical ijma' will presumably not apply to the ijma` that Iqbal has proposed: the collective decisions of
the legislative assembly will naturally be binding on points of law.
Iqbal's proposed reform has been fairly widely supported by other scholars. It is a basically sound
proposal. But to relate this to the idea of a distinction between the factual and ijtihadi ijma` seems
questionable. Apart from the difficulty that might be involved in distinguishing a factual from a
juridical ijma' one can expect but little support for the view that the ijma` of the Companions on ijtihadi
matters is not binding.
Iqbal's views have, however, been criticised on other grounds. S. M. Yusuf has observed that Iqbal was
mistaken in trying to convert ijma` into a modern legislative institution. Yusuf argues that ijtihad and
ijma' have never been the prerogatives of a political organisation, and any attempt to institutionalise
ijma' is bound to alter the nature of ijma` and defeat its basic purpose. For ijtihad is a non-transferable
right of every competent scholar, and a mujtahid is recognised by the community by virtue of his merits
known over a period of time, not through election campaigns or awards of official certificates. The
process of arriving at ijma` is entirely different from that of legislation in a modern state assembly.
Ijma' passes through a natural process which resembles that of the 'survival of the fittest'. No attempt is
made in this process to silence the opposition or to defeat the minority opinion. Opposition is tolerated
until the truth emerges and prevails. Ijma' is a manifestation of the conscience of the community, and it
is due mainly to the natural strength of ijma' and the absence of rigid organisation 'that no one is able to
lay his hands on Islam; when anyone tries to hammer Islam, he ultimately finds to his chagrin that he
has only been beating in the air'.

Ahmad Hasan finds some weaknesses In Yusuf's criticism of Iqbal, and observes that `Dr Yusuf has
probably not understood Iqbal's view correctly.' Hasan finds Iqbal's view to the effect that ijtihad should
be exercised collectively instead of being a preserve of the individual mujtahidun, to be basically sound.
`Ijtihad today cannot be exercised in isolation. Modern conditions demand that it should be exercised
collectively. A mujtahid may be expert in Islamic learnings, but he cannot claim to be perfectly
acquainted with the social conditions of a country and the diverse nature of its problems Ahmad Hasan goes on to point out that the legislative assembly is `the right place' for the purpose
of collective ijtihad, which would in turn provide an effective method of finding solutions to urgent
problems.
The late Shaykh of al-Azhar, Mahmud Shaltut, observes that the conditions of a conclusive ijma`,
especially the one which requires the agreement of all the mujtahidun of the ummah, is no more than a
theoretical proposition which is never expressed in reality. Ijma', in reality, has often meant either the
absence of disagreement (`adam al-ilm bi'l-mukhalif), or the agreement of the majority only (ittifaq al
kathrah). Both of these are acceptable propositions which may form the basis of general legislation.
Shaltut goes on to quote in support the Qur'anic ayah in sura al-Baqarah (2:286) that `God does not
assign to any soul that which falls beyond its capacity.' Shaltut is not opposed to the institutionalization
of ijma` provided that this does not violate the freedom of opinion which must in all eventualities be
granted to the constituents of ijma`. Consensus must never be subjected to a condition which subjugates
freedom of opinion to the arbitrary exercise of political power. Shaltut further adds that since the
realization of maslahah through consensus is the objective of ijma`, maslahah as bound to vary
according to circumstances of time and place. Hence the mujtahidun who participate in ijma`, and their
successors, should all be able to take into consideration a change of circumstances and it should be
possible for them to review a previous ijma` if this is deemed to be the only way to realize the
maslahah. Should they arrive at a second ijma`, this will nullify and replace the first, and constitute a
binding authority on all members of the community.

Conclusion
Under their classical definitions, ijma` and ijtihad were both subject to conditions that virtually drove
them into the realm of utopia. The unreality of these formulations is reflected in modern times in the
experience of Muslim nations and their efforts to reform certain areas of the Shari'ah through the
medium of statutory legislation. The juristic basis for some of the modern reforms introduced in the
areas of marriage and divorce, for example, has been sought through novel interpretations of the
relevant passages of the Qur'an. Some of these reforms may rightly be regarded as instances of ijtihad
in modern times. Yet in none of these instances do the statutory texts or their explanatory memoranda
make an open reference to ijtihad or ijma`. The total absence of these terms in modern statutes is a sad
reflection of the unreality that is encountered in the strict definitions of these concepts. The classical
definitions of ijtihad and ijma` might, at one time, have served the purpose of discouraging excessive
diversity which was felt to be threatening the very existence and integrity of the Shari'ah. But there is
no compelling reason to justify the continued domination of a practice which was designed to bring
ijtihad to a close Ijtihad and ijma' were brought to a standstill, thanks to the extremely difficult
conditions that were imposed on them, conditions which often ran counter to the enterprising and
creative spirit that characterised the period of the pious caliphs and the early imams of jurisprudence.
Dr Yusuf's criticism of Iqbal's proposed reform is based on the dubious assumption that an elected
legislative assembly will not reflect the collective conscience of the community and will unavoidably be
used as an instrument of power politics. Although the cautious advice of this approach may be
persuasive, the assumption behind it goes counter to the spirit of maslahah and of the theory of ijma`
which endows the community with the divine trust of having the capacity and competence to make the
Principles

Sunday, March 6, 2011

Land Acquisition Act 1894




Q: What is Reference and its Procedure about the Presentation of Reference?

A: REFERENCE AND PROCEDURES are as under:
Reference to the Court.
Collector’s statement to the court.
Service of notice.
Restriction on pleadings.
Proceeding to open court.
Cross objection.
Matters to be considered in determining compensation.
Judgment.
As the person interested shows his intention in writing to the Collector to refer the case to the Court of competent jurisdiction for determination of the compensation sum of the land or measurement of the land, the Collector sends the reference to the Court of competent jurisdiction.
The court after examining the said reference services the notice to the applicant as well as the collector and fix the date and place for the hearing. The Court examines the information supplied by the collector about his award and frames the issues in the light of details of the award and objection place in open court and all persons entitled to practice in civil court are entitled to appear, appeal and act such proceedings.
The Provincial Government or a local authority or a company for which the land is acquired may file a cross objection to the objections made by any person interested and the court may reduce the amount awarded by the collector, if it considers just and proper.
The court can enhance the amount of compensation awarded by the Collection, if it thinks proper under Section 23 and 24 of the Land Acquisition Act.

Q: 2 What is the Object of Preliminary Notification as Couched in the Land Acquisition Act?
A: Land Acquisition Act, 1894, is a law for the acquisition of land needed for public purposes and for companies and for determining the amount of compensation to be paid on account of such acquisition. The purpose of this piece of legislation is thus, two fold:
1. To fulfill the need of Government and companies for land acquired by them for their projects.
2. To determine and pay compensation to those private persons or bodies whose land is so acquired.
  The exercise of the power of acquisition has been limited to public purposes. The principles laid down for the determination of compensation, as clarified for judicial pronouncements made from time to time reflect the anxiety of the law-giver to compensation those who have been deprived of property; adequately enough in the sense that they are to be given gold for gold and not copper for gold. In other words the compensation has to be adequate compensation. It is with this end in view that the association of the persons interested in the property with the process of determination of its market value by the collector is a highlight of the statute a bare reading of the Act leads one with the strong impression that one of the main intentions of the Legislature was to ensure the protection of the rights of the persons whose property was being acquired. The Legislature intended protection of the rights of land owners. Strict compliance with the provisions of the Act is essential to take away any right.
The object of the law is to empower Government to acquire land only for a public purpose or for a company, and, for where it is for the company, it is confined only to cases where the Government is satisfied that the purpose of obtaining the land is errection of dwelling house for workmen employed by the directly connected therewith or for the construction of some work which is likely to prove directly useful to the public.
PRILIMINARY INQUIRY FOR ACQUISITION OF LAND: Section 4 is a preliminary step towards the commencement of acquisition proceedings which do not commence until the notification under Section 6 is issued.
The expression ‘public purpose’ has been used in its generic sense of including any purpose in which even a fraction of a community may be interested or by which it may be benefited. But the determination by the State as to whether or not the purpose for which the land is being acquired is for public purpose is not final and the court can determine the nature of the purpose when the question of the Provincial government on the question is correct is a rebut-able presumption.
From the scheme of the Land Acquisition Act, it is amply clear that in arriving at the satisfaction as to whether private property must be compulsorily acquired for a public purpose, there must be a fixity of purpose in the mind of the government because it is in relation to that purpose that the Government explores and arrives at its satisfaction. Prima facie, the Government is the best Judge as to whether an acquisition is for a public purpose. But it is not the sole Judge. Courts have the jurisdiction and it is their duty to determine whenever a question is raised whether an acquisition is or is not for a public purpose. In so determining, courts have to proceed on the basis of the purpose declared under Section 6 and try to find out if the declared purpose is a public purpose at all. In finding out whether the purpose is really a public purpose, the court has to apply two tests. Firstly, whether the purpose benefits the community at large or section thereof and, secondly whether the government is satisfied about the need of the land acquisition for the declared purpose. The public purpose need not be expressly stated in the notification or declaration but if the purpose be challenged, before a court of law, as not a public purpose the same has to be established by evidence aliunde. But when the purpose is expressly stated in the notification or the declaration and that is challenged as not a public purpose, It does not become permissible to add to that purpose other purpose or purposes, not notified or declared and try to support the land acquisition both the notified and declared purpose and also on the un-notified and undeclared purpose.

Q: 3 Write a short not as Mentioned below:

1. THE EXPRESSION LAND: The definition of land given in Section 3 of the Land Acquisition Act is neither exhaustive nor restrictive but is extensive and besides the meaning with which it had been clothed in that section the word is capable of receiving its ordinary, popular and natural sense in which it is understood in the English language. The word “include” used in the interpretation clause does not restrict the power of the Government to acquire the totality of interest in land and it is open to the Government in a given case where it is itself the owner of the land, to acquire such other interests in it as are held by private persons and which clog the right of the Government to put the land to a particular public purpose.
“Land” as defined in Section 3(a) means land together with any  superstructure, fixtures, etc. thereon and benefits arising there from, viz, sum total of aggregate rights in land vertically done to center of earth and up to sky. Acquisition must, therefore, relate to entire vertically located property and not its horizontal slices or its constituents. Acquisition procedure with regard to only first floor of building and not for ground floor or land underneath not permissible under law.
Word “land” means totality of rights in land including tenancy rights. Suggestion that “tenancy rights” have no market value or their market value is incapable of being interpreted in terms of money is not acceptable.

2. COMPANY: The word “company” means in the clause indicates that the definition of “Company” is a complete definition, and a body desiring to apply the Land Acquisition Act must come within one or other of the categories in the definition.
Word ‘ Company’ defined under Section 3 (e) of Act, is not confined to a company in technical sense, but extends to its generic sense of being an association of persons united for a common purpose. The companies Ordinance does not apply to such societies or to the provincial societies, trade unions, ordinary partnership.
OTHER BODIES: There are certain bodies for which specific provision is made in the Acts relating to them for the application of the Land Acquisition Act, e.g. Railways Electric Corporations, tramways companies.
ROAD TRANSPORT BOARD: Provincial Transport Corporation incorporated under an Act, is company and not a local authority.
FOOD CORPORATION: Food Corporation is a statutory body and falls within the definition of ‘Company’ not Government department while acquiring land for corporation the provisions of the Land Acquisition Act, 1894 must be complied with. The land acquired for corporation under Section 4 and 17 declared without lawful authority.

3. PUBLIC PURPOSE:  The expression “Public purpose” has a wide scope under the Act. The expression is not capable of a precise definition and not a rigid meaning. ‘Public purpose’ means purpose furthering general interest of community as opposed to particular interest of individuals and to be construed according to the spirit of times in which legislation enacted. The expression “ public purpose” has been defined in the Land Acquisition Act in an inclusive manner and has been taken to mean a purpose, that is an object or aim in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned. The declaration under sub-section (3) of Section 6 of this Act must be taken as conclusive proof of the fact that the acquisition is being made to serve a public purpose and would prove beneficial to the public. “Public purpose” cannot be defined strictly as the same is liable to change from time to time, from place to place and matter to matter. Definition has to be used in an elastic sense so that it may satisfy changing facts, circumstances, and requirements of society and needs of public.
Anything which is useful to the public in the sense of conferring some public benefit or conducting to some public advantage is a public purpose. Though the expression “useful to the public, as occurring in Section 40 (1) (b) has to be given a narrow meaning and has to be limited to works which are directly useful to the public, there can be no doubt that the establishment such as students’ home, publication department, guest houses and pathshala which are sought to be set up come within the expression ‘public purpose’ even though it is assumed that such purposes cannot be said to be directly useful to the public. Section 3 which is the defining section does not contain any comprehensive definition of the term ‘public purpose’. It appears that the Legislature in its wisdom has deliberately not chosen to limit the term within the narrow confines of a strict legal definition. This apart judicial precedent has been equally reluctant to put the term ‘public purpose’ in a strait-jacket and it has been repeatedly affirmed that it was indeed desirable that this term should retain its elasticity. The concept of a ‘public purpose’ is not a static but a dynamic one, and it is too late in the day to contend that laudable schemes for housing the houseless weaker sections of the community would in the present items not fall within so broad a term as ‘public purpose’. With the concept of the welfare state now well enshrined, the responsibility of the community to provide something so elementary as shelter in the shape of housing to its relatively unfortunate members must now be necessarily classed as a ‘public purpose’ which is obviously conducive to the larger well-being of the society as a whole.
TEST OF A “PUBLIC PURPOSE”  Public purpose is the most essential requirement to justify the application of the Land Acquisition Act, and the Provincial Government has to make a definite declaration, after due inquiry, that the land is required for such purpose. Perhaps the best test of a public purpose would be one which would justify the expenditure of public funds within the meaning of Section 6, but the Provincial Government is the sole Judge.


4. PERSON ENTITLED TO ACT: The expression “entitled to act” is here employed in two senses. With regard to trustees, guardians and committees is clearly refers to acting for others, whereas with regard to a married woman it obviously means, acting for herself. It is used in the former sense expressly in Section 9 (3) and elsewhere by implication, in Section 31 and 32.
TRUSTEES AND EXECUTORS: Trust includes every species of express, implied, or constructive fiduciary ownership. Trustee includes every person holding expressly, by implication, or constructively a fiduciary character.
A trust is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner; the person who reposes or declares the confidence is called the author of the trust; the person who accept the confidence is called the trustee; the person for whose benefit the confidence is accepted is called the beneficiary; the subject matter of the trust is called the trust property or trust money the beneficial interest or interest of the beneficiary is his right against the trustee as owner of the trust property.
GUARDIANS OF MINORS: A ‘guardian’ means a person having the care of the person of a minor or of his property, or of both his person and property vide Section 4 92) of the Guardians and Wards Act, 1890.
A minor means a person who under the provisions of the majority Act, 1875, is to be deemed not to have attained his majority. Section 3 of the Majority Act, 1875 fixes 18 years as the age majority of persons domiciled in Pakistan, except in cases where a guardian has been appointed by the Court or the minor is under the courts of Wards, in which case the age is 21 years. In computing the age, the days on which the person was born is to be included as a whole day, and majority would be deemed to be attained on the anniversary that of the 18th or 21st year, as the case may be.
5. COLLECTOR: The expression “Collector” according to this clause, means the Collector of a district and includes a Deputy Commissioner and any officer especially appointed by the Provincial Government to perform the functions of a Collector under this Act. Even when lands are acquired for railways, municipalities and District Boards or other local bodies, or companies the land is acquired by the government and after acquisition is handed over to the local body or company concerned. The Collectors are, therefore, entirely independent of the local body which acquires the land. Local authority is not person interested. It cannot demand reference.
COLLECTOR CANNOT DELEGATE HIS DUTIES: The Assistant or Deputy Collector or an Assistant Commissioner or Extra Assistant Commissioner may be invested with the power of a Collector of a district. It does not include any officer to whom the Deputy Commissioner thinks fit to delegate his duties. An award made by such delegatee is illegal.
STATUS OF COLLECTOR – COLLECTOR NOT A JUDICIAL OFFICER: the Collector is in no sense of the term a Judicial Officer, not is the proceeding before him a judicial proceeding. The Collector as an officer or agent of the government or of the company for which Government take up the land, and they are accordingly bound by the award of their agent; while if judicial decision as to the value is desired by the owner he can obtain it by requiring the matter to be referred by the Collector are departmental in their character, a tender through him to the persons interested, and it is open to him, in waking his award as to the compensation to be offered, to consider all available information on the question.
COLLECTOR – HIS LIABILITY TO BE SUED: It cannot be suggested that the Collector should never be held liable to pay out the money again when he has once paid it out to a wrong person. There may be cases in which he has shown such negligence that he could rightly be held liable for the loss by a claimant of money which the Courts subsequently hold should have been paid to him. But to decide whether a Collector should be so liable would involve a court in an enquiry into the procedure adopted by him and finding that at least there had been some negligence or serious error on his part. There is nothing in the Land Acquisition Act to suggest that such an enquiry should be held on a reference under the provisions of Section 18 of the Act. A question of that sort is one which can only be decided satisfactorily in a separate suit.
6. COURT:  Ordinarily the principal civil court of original Jurisdiction shall be the “Court” under the Act. But the Provincial Government has power to appoint a special judicial officer within any specified local limits to perform the functions of a court. It can only be a judicial officer that can be so appointed. The Select Committee on the Bill observed. In Section 3 of the Bill we have added a clause amending the definition of Court. It appears to us that all references from the Collector’s authority should be to an independent judicial authority, and, now that the Punjab and Oudh have divided their judicial from their revenue establishments, there are few parts of India in which there are no judicial officers who have no concern with executive administration. We think, therefore, that the time has now come when the court to which reference under the Act will be made should be generally the principal civil court, we have retained the clause in the original definition which empowers the provincial Government to appoint special judicial officers to perform the functions of a Judge under the Act.
The court exercising jurisdiction under the Land Acquisition Act, 1 of 1894, is ordinarily the District Court which is the principal civil Court of original jurisdiction, but shall not include a High Court in the exercise of original civil jurisdiction.

Q: 4 Describe the Legal Requirements for the Determination of the Compensation, When the land is Acquired for Public Interest?

A: Under Section 23 of the Land Acquisition Act , the court shall take into consideration while awarding the compensation for the land acquired, as under:
1. The market value of the land at the date of the publication of notification under Section 4.
2. The damage sustained by the person interested by the reason of the taking of any standing corps or by trees by taking possession.
3. the damage sustained by the person interested at the time of Collector’s taking possession of land by reason of serving such land from his other land.
4. the damage sustained by the person interested, at the time of the Collector’s taking possession of land by reason of the acquisition injuriously effecting his other property, movable of immovable, in any other manner, of his earning.
5. The damage sustained by the person interested while taking possession of the collector and the person interested is compelled to change his residence or place of business, the reasonable expenses incidental to such change.
6. the damage sustained at the time of taking possession of land resulting from diminution of profit of the land between the time of the publication of declaration under Section 6 and the time of Collector’s taking possession of the land.
In addition to the market value of land as mentioned above, the court shall be every case award a sum of 15% on such market value in consideration of the compulsory nature of acquisition.

WHAT ARE THE MATTERS TO BE NEGLECTED IN DETERMINING COMPENSATIN: Under Section 24 of the Land Acquisition Act, the Court shall not take into consideration the following points while determining the compensation:
The degree of urgency which has led to acquisition.
The disinclination of the person interested to part with land acquired.
Any damage sustained by his which if caused by a private person, would not render such person liable to a suit.
Any damaged which is likely to be caused to land acquired after the date of publication of the declaration under Section 6 by or in consequence of the use to which it will be put.
Any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired.
Any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put.
7. Any outlay or improvement on or disposal of the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication of the notification under Section 4 (1).

Q: 5 Whether Legal Remedy is Available to an Aggrieved Person  by the Order of Collector?

A: Under Section 18 of the Land Acquisition Act, any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the court, whether his objection relater to the measurement of the land, the amount of compensation the person to whom it is payable, or the apportionment of the compensation amount the persons interested.
The application shall state the grounds on which objection to the award is taken. The application shall be filed within six weeks from the date of the Collector’s award.
In other cases, within six weeks of the receipt of the notice from the Collector under Section 12(2) or within six months from the date of the Collector’s award, whichever period shall first expire.

Q: 6 Define “INTERESTED PERSON” under the Land Acquisition Act if the Property is required for Public Interest?

A: The expression ‘person interested’ includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act. Further a person is to be deemed to be interested in land if he is interested in an easement affecting the land. A “person interested” who had not accepted the award has the right to insist on a reference to the District Court, if he had complied with the provision of sub-section (2) of Section 18. A “person interested” does not means a person whose interest the collector is prepared to admit.
Section 18 enables any person interested, who has not accepted the award to require a reference and Section 3(b) defines person interested’ as including all persons claiming an interest in the compensation. As long as the application set out a claim to an interest in the compensation, in no part of the collector’s merely because he may think it is not. Application under Section 18, has to be made by an “interested person” which expression in Section 3 (b) of the Act is defined as including person claiming an interest in the compensation. Under this definition it is immaterial whether there is any substance in the claim made by the person applying under Section 18 or not. Definition is inclusive. Person having prima facie title to land is ‘person interested’. A person who has purchased certain land prior to notification in respect of its acquisition and to whom the proposed acquisition and the consequent award are not notified is an interested person in the compensation within the meaning of Section 3 (b).
Tenant of house that is being acquired is “person interested” within Section 3(b), and can raise objection to acquisition.
A company or local authority on whose behalf the land is being acquired is a “person interested” within the meaning of Section 3 9b) of the Land Acquisition Act if it has an interest in the lands that are the subject of acquisition and it has, therefore, a right to demand a reference under Section 18 of the Act, but for that interest only. The proper interpretation of the proviso to Section 50 (2) is that it relates only to that sub-section and makes it clear that a company or local authority has not been granted a power to demand a reference as to compensation by virtue of the power given therein to appear and adduce evidence before the Collector or Court on the subject. It does not, therefore, take away the rights which the company or the local authority might enjoy as claimants or persons interested under Section 18 of the Act. The rights of making reference has been specifically given under sub-section (3) to the Provincial Government. It is the Provincial government alone which can make a reference and not the Deputy Commissioner.