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Member of the school founded by Ahmed Ibn Hanbal & also referred as ¶Sheikh ul Islam·. Used his own Ijtihad even if it contradict his own madhab or any other madhaib.al m ibn Abd asSal m Ibn Taymiya al. theologian & logical born in Harran.arr n An Islamic Scholar. full name: Taq ad-D n Abu 'lAbb s A mad ibn Abd al.Taqi ad-Din Ahmad ibn Taymiyyah (January 22. 1263²1328 CE). Considered as ¶Mujtahid Mutlaq· by his contemporaries & later scholars. . now located in Turkey.
.Today we will be looking at three fatwa·s issued by Ibn Taymiyya during his time. Damascus. The fatwa·s used by the author revolve around transactions & reflect real cases in the sixth/thirteen & seventh/fourteenth century. >Due to time constraint. An attempt has been made to analyse & try to shed some light on the usage of Ijtihad by Ibn Taymiyya. I will try to give a brief overview about the case followed by the Ijtehad used by Ibn Taymiyya.
Is C entitled to return the slave to B & subsequently B to A. So. who is in love with A. A sells a female slave to B. under the argument that slaves love for A is a defect in the slave??? . The slave was then resold to C. Fatwa concerning the sale & purchase of slaves.
it can be returned to the buyer. Stated that. Defined ¶amorousness· as a defect & conceded that both C & B have the right to return the slave & reclaim their price (unless they were already aware about the defect). generally a slave girl in love with her previous owner has a reduced price.(Hanbali·s allow to keep it at a lower price) . Taymiyya decreed that C is entitled to return the slave to B & B to A. Due to lack of references on amorousness in furu works. Taymiyya referred to general principle of ¶ada· (custom). Neither refers to Qur·an nor Hadith or any opinions of previous jurists. As there is an Ijma among all the law schools that if the object is defective.
Usage of ¶Urf to define ¶ayb. (defect) . Did not refer to previous jurists explicitly. Took ¶Urf (local customs) in to consideration to make the law more flexible as per the local circumstances.
Case: Honey. Bee keepers of that time had to often pay taxes on honey. was an important commodity. Bee keepers allowed their bees to fly in a certain region to collect pollen from the plants there. The QUESTION ?: Can landowners claim a recompense or repayment for the consumption of their pollen ??? . normally produced from pollen.The above case deals with topic of mubahat which means objects which belong to all muslims equally eg: water. grass & fire according to a prophetic hadith.
even though he accepted it as maruf (weak but commonly accepted). plants are not included in the land of the owner & therefore categorised as public property. hence refers to Ahmed b Hanbal·s Musnad. hence not mubah However. Case of pollen not mentioned in any of the furu works. . Taymiyya preferred to follow the latter hadith. where according to prophetic tradition the property of land extends to the plants growing on it. according to another tradition from Ahmed B Hanbal. Therefore the plants as well as pollen are considered as owners property.The concern here was whether pollen also considered to be ¶mubah·.
according to him refers to hadith scholars & not the whole community) Furthermore. then it is even more permitted to take pollen(through bees) as its not going to infringe the landowners rights or reduce the value of his property. if it becomes accepted by the community (community here. His application of awla argument was that if some one is permitted to take fire. . grass & fire as public property also applies to pollen as well. he attempts to demonstrate that hadith which refers to water. as per the Usuli·s a weak hadith can become sound (sahih). grass or water. He proves his argument with help of an Awla argument.His view was also supported by the fact that. which is described by usuli·s as mafhum al-muwafaqa or qiyas jali.
(except for this hadith. whose view were exactly opposite to the view of other schools. but following the opinions of previous scholars of Hanbali madhab. Refers to Prophet. honey is subject to taxation. even though not part of the mustafti·s question.Proactively deals with the issue of taxation on Honey as well. No utilisation of Ijtihad in this case. all other hadiths do allow taxation on honey) His confidence was also due to the support of esteemed experts like Malik & Shafi who were in the favor of no taxation on honey. his companions & few previous scholars & deduces that even though pollen is public property. Hanbali view was based on a hadith mentioned by Abu Ubayd & found only in Ibn Maja. .
This case revolves around a contract termed as ¶Daman·.Hence in a daman agreement. however Ibn Taymiyya approved of this contract. Now. this type of contract was not universally accepted in accordance with the Shariah. . What is Daman?? Daman is basically a combination of musaqa (a share cropping agreement) & Ijara (rent). Ibn Taymiyya proved his legality by the usage of Ijma & Qiyas. the landowner (rabb al ard) receives a fixed payment of rent. whereas the worker on the land (amil) gets the whole crop.
where A lets the land to B for a fixed amount & B is to look after the irrigation of trees .e it·s a risk) & that the seller of the fruit has to continue to tend the tree until harvest time (constituting unpaid labour & hence unfair exchange) . but with only certain restrictions) The rationale behind this was that it constitutes payment for goods which do not exist (and might not ever) exist (i. A wants to sell the fruits (still on trees) to B. grapes & pomegranates grow. This type of contract was opposed by a lot of jusrists including hanbalis (who accepted it. harvesting the fruits when they have ripened. Ibn Taymiyya was of the opinion that A & B can enter into a Daman contract. though some fruits are not yet ready.A is the owner of an orchard. including apricots. in which fruit trees.
to a hadith byHarb al Kirmani where Umar Ibn Al Khattab hired out the orchard of Usayd b. Al-Hudayr after his death. Refers . but they did not object. Taymiyya was of the opinion that the decision of Umar was mujma alayhi as he presumed that it was known to the companions. for a fixed amount in order to pay off a debt which Usayd had incurred during his life.
Many jurists did not approve of the opinion that consumables can be subject of contracts similar to rent. According to him. the Quranic verse demonstrates that consumable items & their usufruct can be part of an ijara contract & hence the rental element in the daman contract is valid. the basis of analogy used is the case of daman is a Quranic verse (Q65 verse 6) according to which nurses are due compensation for suckling a child.Ibn Taymiyya also used qiyas in his Ijtehad. if by usufruct is meant ¶using a thing without reducing its worth for the next user or the owner·. Ibn Taymiyya deduced that the usufruct in Ijara contract cannot be an essential element of a contract of ijara. .
. with two similar cases. Taymiyya utilises another type of Qiyas known as Qiyas al Shabah. which is accepted by most of the usuli·s & consists of comparing a case in question. then the illa will be the differing element.In order to legitimise Daman . but that the general prescription to preserve public interest is transferred to the case in question. The third type of Qiyas used is known as Qiyas al Munasaba. widely accepted by usulis. & they have different hukm. which is used in a case where there is no explicit indication in the sources . The basis behind it is that If two cases are similar in all ways except for one element. Final type of analogy used by Ibn Taymiyya is termed as Dawaran.
He refers to a hadith. as the purchase of unripened fruit since the tenant immediately begins to take care of trees himself. As this being the sole difference & the hukums being directly opposed. He pointed out that cause of the prescription is the fact that the seller has to take care of the fruits until the harvest. has to take care of the land himself. whereas some one who rents land. according to which the sale of unripened fruit is prohibited. Thus demonstrating that the rent of the orchard cannot have the same hukm. it must be the illa. .
Three cases demonstrated his willingness to use ijtihad. Contradicts his own madhab & other madhaib as well. Uses various forms of qiyas & restricted definitions of ijma. The gate of Ijitahad was not closed. Proves that he not only utilises the ijtihad in theory but also in practice. .
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