presented by Ahmed Faraaz

Taqi ad-Din Ahmad ibn Taymiyyah (January 22, 12631328 CE), full name: Taq ad-D n Abu 'lAbb s A mad ibn Abd al- al m ibn Abd asSal m Ibn Taymiya al- arr n An Islamic Scholar, theologian & logical born in Harran, now located in Turkey. Member of the school founded by Ahmed Ibn Hanbal & also referred as Sheikh ul Islam. Considered as Mujtahid Mutlaq by his contemporaries & later scholars. Used his own Ijtihad even if it contradict his own madhab or any other madhaib.

Today we will be looking at three fatwas issued by Ibn Taymiyya during his time. An attempt has been made to analyse & try to shed some light on the usage of Ijtihad by Ibn Taymiyya. The fatwas used by the author revolve around transactions & reflect real cases in the sixth/thirteen & seventh/fourteenth century, Damascus. >Due to time constraint, I will try to give a brief overview about the case followed by the Ijtehad used by Ibn Taymiyya.

 Fatwa

concerning the sale & purchase of slaves. A sells a female slave to B, who is in love with A. The slave was then resold to C. So, Is C entitled to return the slave to B & subsequently B to A, under the argument that slaves love for A is a defect in the slave???

Neither refers to Quran nor Hadith or any opinions of previous jurists. 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). Due to lack of references on amorousness in furu works, Taymiyya referred to general principle of ada (custom). Stated that, generally a slave girl in love with her previous owner has a reduced price. Taymiyya decreed that C is entitled to return the slave to B & B to A. As there is an Ijma among all the law schools that if the object is defective, it can be returned to the buyer.(Hanbalis allow to keep it at a lower price)

 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. Usage of Urf to define ayb. (defect)

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. Case: Honey, normally produced from pollen, was an important commodity. Bee keepers of that time had to often pay taxes on honey. 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 ???

The concern here was whether pollen also considered to be mubah. Case of pollen not mentioned in any of the furu works, hence refers to Ahmed b Hanbals Musnad, where according to prophetic tradition the property of land extends to the plants growing on it. Therefore the plants as well as pollen are considered as owners property, hence not mubah However, according to another tradition from Ahmed B Hanbal, plants are not included in the land of the owner & therefore categorised as public property. Taymiyya preferred to follow the latter hadith, even though he accepted it as maruf (weak but commonly accepted).

His view was also supported by the fact that, as per the Usulis a weak hadith can become sound (sahih), if it becomes accepted by the community (community here, according to him refers to hadith scholars & not the whole community) Furthermore, he attempts to demonstrate that hadith which refers to water, grass & fire as public property also applies to pollen as well. He proves his argument with help of an Awla argument, which is described by usulis as mafhum al-muwafaqa or qiyas jali. His application of awla argument was that if some one is permitted to take fire, grass or water, 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.

Proactively deals with the issue of taxation on Honey as well, even though not part of the mustaftis question. Refers to Prophet, his companions & few previous scholars & deduces that even though pollen is public property, honey is subject to taxation. No utilisation of Ijtihad in this case, but following the opinions of previous scholars of Hanbali madhab, whose view were exactly opposite to the view of other schools. Hanbali view was based on a hadith mentioned by Abu Ubayd & found only in Ibn Maja.(except for this hadith, 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.

 This

case revolves around a contract termed as Daman. What is Daman?? Daman is basically a combination of musaqa (a share cropping agreement) & Ijara (rent).Hence in a daman agreement, the landowner (rabb al ard) receives a fixed payment of rent, whereas the worker on the land (amil) gets the whole crop. Now, this type of contract was not universally accepted in accordance with the Shariah, however Ibn Taymiyya approved of this contract. Ibn Taymiyya proved his legality by the usage of Ijma & Qiyas.

A is the owner of an orchard, in which fruit trees, including apricots, grapes & pomegranates grow. A wants to sell the fruits (still on trees) to B, though some fruits are not yet ready. Ibn Taymiyya was of the opinion that A & B can enter into a Daman contract, where A lets the land to B for a fixed amount & B is to look after the irrigation of trees , harvesting the fruits when they have ripened. This type of contract was opposed by a lot of jusrists including hanbalis (who accepted it, 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.e its a risk) & that the seller of the fruit has to continue to tend the tree until harvest time (constituting unpaid labour & hence unfair exchange)

to a hadith byHarb al Kirmani where Umar Ibn Al Khattab hired out the orchard of Usayd b. Al-Hudayr after his death, for a fixed amount in order to pay off a debt which Usayd had incurred during his life. Taymiyya was of the opinion that the decision of Umar was mujma alayhi as he presumed that it was known to the companions, but they did not object.
Refers

Ibn Taymiyya also used qiyas in his Ijtehad, 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 deduced that the usufruct in Ijara contract cannot be an essential element of a contract of ijara, if by usufruct is meant using a thing without reducing its worth for the next user or the owner. 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. Many jurists did not approve of the opinion that consumables can be subject of contracts similar to rent.

In order to legitimise Daman , Taymiyya utilises another type of Qiyas known as Qiyas al Shabah, which is accepted by most of the usulis & consists of comparing a case in question, with two similar cases. The third type of Qiyas used is known as Qiyas al Munasaba, which is used in a case where there is no explicit indication in the sources , but that the general prescription to preserve public interest is transferred to the case in question. Final type of analogy used by Ibn Taymiyya is termed as Dawaran, widely accepted by usulis. The basis behind it is that If two cases are similar in all ways except for one element, & they have different hukm, then the illa will be the differing element.

He refers to a hadith, according to which the sale of unripened fruit is prohibited. He pointed out that cause of the prescription is the fact that the seller has to take care of the fruits until the harvest, whereas some one who rents land, has to take care of the land himself. As this being the sole difference & the hukums being directly opposed, it must be the illa. Thus demonstrating that the rent of the orchard cannot have the same hukm, as the purchase of unripened fruit since the tenant immediately begins to take care of trees himself.

 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. Proves that he not only utilises the ijtihad in theory but also in practice. The gate of Ijitahad was not closed.