The majority of jurists, however, maintain that this is not a condition of ijma` and that ijma` not only
binds the next generation but also its own participants, as it would only be reasonable to expect that if
ijma` did not bind its participants, it should not bind anyone else either.
Principles of Islamic Jurisprudence ~ Kamali 160
[14. Shawkani,
[16. Amidi,
[17. Abu Zahrah, Usul,
[18. Shawkani, Irshad, p.71.]
With regard
to the tacit ijma `(for which see below), too, some jurists have held that it is concluded only after the
death of its participants, so that it can be established that none of them have subsequently expressed an
opinion. For when they break their silence they will no longer be regarded as silent participants, and
may even turn a tacit ijma` into an explicit one.The majority of ulema, nevertheless, refuse to place any importance on the `disappearance of the
generation', for in view of the overlapping of generations (tadakhul al-a'sar), it is impossible to
distinguish the end of one generation from the beginning of the next. Thus the period of the
Companions cannot be clearly distinguished from that of the Successors, nor can any other period be so
distinguished from its preceding or succeeding generations.
[19. Amidi, Ihkam, I, 257; Ibn Hazm, Ihkam, IV, 154.]
However, al-Ghazali, to all intents and purposes, has resolved this question by stating that `for the
formation of ijma `, it is enough that agreement should have taken place, even if only for an instant'.
Ghazali, Mustasfa, I, 121.]
When ijma` fulfills the foregoing requirements, it becomes binding (wajib) on everyone. Consequently,
the mujtahidun of a subsequent age are no longer at liberty to exercise fresh ijtihad over the same issue.
For once it is concluded, ijma` is not open to amendment or abrogation (naskh). The rules of naskh are
not relevant to ijma` in the sense that ijma` can neither repeal nor be repealed. This is the majority view,
although some jurists have stated that the constituents of ijma` themselves are entitled to repeal their
own ijma' and to enact another one to its place. But once an ijma' is finalised, especially when all of its
constituents have passed away, no further ijma' may be concluded on the same subject. Should there be
a second ijma `on the same point, it will be of no account.
Proof (Hujjiyyah) of Ijma`
[21. Khallaf, `Ilm, pp. 46-47; Abu Zahrah, Usul, p. 167.]
What proof is there that ijma' is a source of law? The ulema have sought to justify ijma` on the
authority of the Qur'an, the Sunnah, and reason. We shall presently discuss the ayat and the ahadith that
have been quoted in support of ijma'. It should be noted at the outset, however, that the ulema have on
the whole maintained the impression that the textual evidence in support of ijma' does not amount to a
conclusive proof. Having said this, one might add that both al-Ghazali and al-Amidi are of the view that
when compared to the Qur'an, the Sunnah provides a stronger argument in favour of ijma'.
Mustasfa, I, III, Amidi, Ihkam, I, 219.]
1. 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.
Messenger, and those charged with authority among you.']
[23. The ayah (4:59) provides: 'O you who believe, obey God, and obey the
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
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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.
[24. Razi, Tafsir, III, 243.]
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.
[25. Khallaf, `Ilm, p. 47.]
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.
[26. 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.' (Irving's translation, p. 45.)]
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!
The commentators observe that `the way of the believers' in this ayah refers to their 'agreement and the
way that they have chosen', in other words, to their consensus. Adherence to the way of the community
is thus binding, while departure from it is forbidden. Departing from the believers' way has been
approximated to disobeying the Prophet, both of which are forbidden. There are several points that the
commentators have highlighted concerning this ayah. However, before elaborating further, a brief
discussion of the other Qur'anic passages which are quoted in support of consensus would be useful.
The Qur'an is expressive of the dignified status that God has bestowed on the Muslim community. Thus
we read in sura Al-`Imran (3:109): `You are the best community that has been raised for mankind. You
enjoin right and forbid evil and you believe in God.' This ayah attests to some of the outstanding merits
of the Muslim community. It is thus argued that had the community been capable of agreeing on an
error, the Qur'an would not have praised it in such terms. It is further noted that the contents of this
ayah give some indication as to the meaning of the phrase `the believers' way'.
On the same theme, we read in sura al-Baqarah (2:143): `Thus We have made you a middle nation
[ummatan wasatan], that you may be witnesses over mankind.' Literally, wasat means `middle',
implying justice and balance, qualities which merit recognition of the agreed decision of the community
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and the rectitude of its way. Furthermore, it is by virtue of uprightness that God has bestowed upon the
Muslim community the merit of being a `witness over mankind'.
[27. Amidi, Ihkam, I, 211.]
In yet another reference to the ummah, the Qur'an proclaims in sura al-A'raf (7:181): `And of those We
created are a nation who direct others with truth and dispense justice on its basis.' There are three other
ayat which need to be quoted. These are:
Al-'Imran (3:102):`Cling firmly together to God's rope and do not separate.'
This ayah obviously forbids separation (tafarruq). Since opposition to the ijma' is a form of tafarruq, it
is therefore prohibited.
[28. Amidi, Ihkam, I, 217; Ghazali, Mustasfa, I, 111.]
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.'
[29. Ghazali, Mustasfa, I, 111.]
By implication (i.e., divergent implication -mafhum al-mukhalafah), this ayah too upholds the authority
of all that is agreed upon by the community.
[30. Ghazali, Mustasfa, I, 111.]
Having quoted all the foregoing ayat, al-Ghazali observes that 'all of these are apparent indications
(zawahir) none of which amounts to a clear nass on the subject of ijma `.' Al-Ghazali adds that of all
these, the ayah at 4:115 is closest to the point. For it renders adherence to the `believers' way' an
obligation. Al-Shafi`i has also quoted it, and has drawn the conclusion that this ayah provides a clear
authority for ijma `. According to him, following a way other than that of the believers is haram, and
following the believers' way is wajib.
[31. Ghazali, Mustasfa, I, 111.]
But despite this, al-Ghazali explains that the
main theme of this ayah is a warning against disobedience to the Prophet and hostility against the
believers. It requires the believers to give the Prophet active support and defend him against enemies. It
is not enough for a believer merely to avoid causing hardship (mashaqqa) to the Prophet; he must
actively help him and obey all his commands and prohibitions. This is the main theme of the ayah. The
Prophet himself has not given it a specific interpretation to warrant a departure from its manifest (zahir)
meaning. The Prophet, in other words, has not made any reference to ijma` in this context From this
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analysis, it would appear that al-Ghazali does not agree with the conclusion that al-Shafi'i has drawn
from this ayah.
Jalal al-Din al-Suyuti's interpretation of the same ayah is broadly in line with what al-Ghazali had to
say. There is no indication in al-Suyuti's Tafsir al-Jalalayn to the effect that this ayah provides an
explicit authority for ijma'.
[32. Suyuti, Tafsir, I, 87.]
Following a path other than that of the believers', according to both al-Suyuti and al-Shawkani, means
abandoning Islam. Al-Shawkani adds: 'A number of ulema have drawn the conclusion that this ayah
provides the authority for ijma'. But this is an unwarranted conclusion, as following a way other than
that of the believers means unbelief, that is, renouncing Islam in favour of another religion.' AlShawkani
further suggests that the occasion of revelation (sha'n
al-nuzul)
of this ayah
relates to the
context
of apostasy. Specifically, it is reported that one Tu`mah b. Ubayraq had accused a Jew of a theft
which
Tu'mah had committed himself. As a result of the revelation of this ayah,
the Jew was cleared of
the
charge but Tu`mah himself renounced Islam and fled to Mecca.
75. For a good summary of Shawkani's views on the subject see Sadr, ijma' , pp. 30-40.]
[33. Shawkani, Fath al-Qadir, I, 515; idem., Irshad, p.
Muhammad 'Abduh and his disciple, Rashid Rida have observed that the ayah under discussion was
revealed concerning the 'way of the believers' during the lifetime of the Prophet, and its application
must be confined to that period. For hostility toward the Prophet was only possible when he was alive.
`Abduh further remarks that to quote this
ayah in support of ijma` leads to irrational conclusions, for it would amount to drawing a parallel
between those who are threatened with the punishment of Hell and a mujtahid who differs with the
opinion of others. A mujtahid, even when he takes an exception to the prevalent opinion, or to the path
followed by other mujtahidun, is still a Muslim, and even merits a reward for his efforts. 'Abduh
concludes that the sha'n al-nuzul of this ayah does not lend support to the conclusion that al-Shafi'i has
drawn from it.
[34. Rashid Rida, Tafsir al-Manar, V, 201. For a similar view see Sadr, Ijma', p.40.]
It is further suggested that the threat in the ayah under discussion is primarily concerned with the first
part of the ayah, namely, disobeying the Prophet, and not necessarily with the second. Hence
divergence from the believers' way is lawful in the absence of opposition to the Prophet. The validity of
this critique is, however, disputed, as the ayah itself does not distinguish between the two parts as such,
and therefore the threat applies equally to both.
[35 Amidi, Ihkam, I, 205.]
Al-Amidi discusses the Qur'anic ayat concerning ijma', and concludes that they may give rise to a
probability (zann) but they do not impart positive knowledge. If we assume that ijma` is a decisive
proof, then establishing its authority on the basis of speculative evidence is not enough. Speculative
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evidence would suffice only if ijma' were deemed to be a speculative doctrine, which is not the case.
Amidi, Ihkam, I, 218.]
2. The Sunnah on Ijma `
The Hadith which is most frequently quoted in support of ijma' reads:
`My community shall never agree on an error.'
ijma' have been quoted by both Ghazali and Amidi as shown in footnote 41 below.]
[37. Ibn Majah, Sunan, II, 1303. Hadith no. 3950. This and a number of other ahadith on
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.
Docrtrine, p.60.]
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.
Principles of Islamic Jurisprudence ~ Kamali 165
[38. Cf. Ahmad Hasan,
[39. Ghazali, Mustasfa, I, 111.]
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:
[365. 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 b. Mas'ud which is as follows:
'Whatever the Muslims deem to be good is good in the eyes of God.
[40. Amidi considers this to be
a Hadith whose chain of narration goes back to the Prophet (see his Ihkam, I, 214). Ahmad Hasan points out that Muhammad b. Hasan al-
Shaybani initially reported this as a Hadith, but later it was attributed to Ibn Mas'ud (see his Doctrine, p. 37).]
Having quoted these (and other) ahadith, both al-Ghazali and al-Amidi observe that their main theme
and purport has not been opposed by the Companions, the Successors and others throughout the ages,
and that everyone has agreed on their broad outline. The ulema have continued to rely on them in their
exposition of the general and detailed rules of the Shari'ah. In answer to the point that all these are
solitary (ahad) reports which do not amount to a definitive proof, the same authors observe that the
main purport of these ahadith nevertheless conveys positive knowledge, and that the infallibility of the
ummah is sustained by their collective weight
[41. Ghazali, Mustasfa; I, 111; Amidi, Ihkam, I, 220-221.]
The point may be
illustrated by saying that we know the courage of `Ali, the generosity of Hatim, the erudition of alShafi'i
in fiqh,
and the esteem in which the Prophet held his Companions, despite the absence of
Mutawatir
reports
on these subjects. Although the foregoing ahadith
are all Ahad
and could be
subjected
to doubt if taken individually, their collective import may, nevertheless, not be denied.
Ghazali, Mustasfa, I, 112.]
As to the question whether 'dalalah' and `khata' ', in these ahadith (especially in the first four) could
mean disbelief (kufr) and heresy (bid'ah) with the view that the Prophet might have meant that his
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community shall not fall into disbelief, it is observed that khata' is general and could include kufr but
that dalalah does not, for dalalah only means an error or erroneous conduct.
[43. Ghazali, Mustasfa, I, 112: We find in
the Qur'an, for example, in an address to the Prophet Muhammad: And He found then wondering [dallan] and gave thee guidance (al-Duha, 93:7). In another place
the Qur'an relates of Moses the following words: `He said: I did it then [i.e. slayed the Egyptian] when I was in error' (al-Shu'ara', 26:20). In both these instances
dalal does not imply disbelief. Similarly the Arabic expression dalla fulan `an al-tariq (so-and-so lost his way) confirms the same meaning of dalal.]
If
dalalah meant disbelief, then the ahadith under discussion would fail to provide an authority for the
infallibility of the ummah, but if it meant an error only, then they could provide such authority.
Mustasfa, I, 112: We find in the Qur'an, for example, in an address to the Prophet Muhammad: And He found then wondering [dallan] and gave thee guidance (al-
Duha, 93:7). In another place the Qur'an relates of Moses the following words: `He said: I did it then [i.e. slayed the Egyptian] when I was in error' (al-Shu'ara',
26:20). In both these instances dalal does not imply disbelief. Similarly the Arabic expression dalla fulan `an al-tariq (so-and-so lost his way) confirms the same
meaning of dalal.]
It is further observed that the article 'la' in the Hadith under discussion could either imply negation
(nafy) or prohibition (nahy). If the latter, it would simply prohibit the people from deviation, and as
such the Hadith could not sustain the notion of infallibility for the ummah.
Principles of Islamic Jurisprudence ~ Kamali 167
[44. Ghazali,
[45 Sadr Ijma', p. 43: An example of the 'la of
prohibition' is the Qur'anic prohibition concerning adultery which reads la taqrabu al-zina (do not approach zina). With a la of prohibition the Hadith would simply
instruct the community not to agree upon an error.]
According to another observer, the manifest (zahir) meaning of the
Hadith is that the ummah abstains from a collective agreement on an error. The Hadith, in other words,
precludes a general agreement on an error, but not the error itself. These are some of the doubts which
have been expressed concerning the precise meaning of the Hadith. They may or may not be correct,
but so long as the Hadith is open to such doubts, it cannot provide a decisive proof (dalil qat'i) for
ijma'.
[46. Sadr. Ijma`, 43.]
Muhammad `Abduh has observed that the Hadith in question does not speak of
ijma` at all, nor does it sustain the notion of infallibility for the community. It is an exaggerated claim to
read ijma' into this Hadith regardless of whether reference is made to the agreement of the jurists or to
that of the community at large.
[47. Rida, Tafsir al-Manar, V, 205.]
It is further suggested that some of the foregoing ahadith (nos. 4, 5 and 6 in particular) simply
encourage fraternity and love among the members of the community, and, as such, do not en-visage the
notion of ijma' as a source of law. As for our Hadith number seven, although al-Ghazali quotes it, it is
not relevant to ijma`, as it obviously means that a group of the ummah shall remain on the right path,
not the ummah as a whole. The Shi'ah Imamiyyah have quoted this Hadith in support of their doctrine
of the ijma' of ahl al-bayt, which refers to the members of the family of the Prophet.
The word `ummah' (or jama'ah) in the foregoing ahadith means, according to one view, the
overwhelming majority of Muslims. This view is supported in a number of statements from the
Companions. According to another view, jama'ah refers to the scholars of the community only. The
masses, it is argued, look up to the scholars from whom they acquire knowledge of law and religion,
and it is the latter whose consensus is contemplated in the relevant ahadith. According to yet another
opinion, ummah (and jama'ah) refers only to the Companions, who are the founding fathers of the
[48. Sadr, Ijma', pp. 44-45.]
Muslim community. According to this interpretation, ummah and jama'ah in all the foregoing ahadith
refer to the Companions only.
[49. Cf. Hasan, Doctrine, p.59.]
And finally, ummah and jama`ah refer to the whole of the Muslim community and not to a particular
section thereof. The grace of 'ismah, according to this view, is endowed on the whole of the community
without any reservation or specification. Thus is the view of al-Shafi'i, who wrote in his Risalah: 'And
we know that the people at large cannot agree on an error or on what may contradict the Sunnah of the
Prophet.
[50. Shafi'i's Risalah (trans. Khadduri), p.285.]
Having discussed the ahadith relating to ijma', Ahmad Hasan observes that they are inconclusive. All of
them emphasise unity and integration. Some of them are predictive and others circumstantial: They may
mean ijma`, or something else.' Hence the argument that they provide the authority for ijma' is
'definitely subjective'. The same author elaborates that:
a. There was no idea of ijma` as a doctrine of jurisprudence in the early period;
b.
c. The jurists could not determine a definite meaning for 'ummah' or Jama'ah ; and
d.
e. Ahadith which convey a general meaning should not be restricted to a particular point of
f.
view.
[51. Hasan, Doctrine, pp.59-60.]
Notwithstanding the doubts and uncertainties in the nusus, the majority of ulema have concluded that
the consensus of all the mujtahidun on a particular ruling is a sure indication that the word of truth has
prevailed over their differences; that it is due to the strength of that truth that they have reached a
consensus. This rational argument in support of ijma` has been further advanced to the effect that
consensus upon a shar'i ruling is bound to be founded on sound ijtihad. In exercising ijtihad, the
mujtahid is normally guided by certain rules and guidelines. Ijtihad often consists of an interpretation of
the nass, or of a rational extension of its ruling. Even in the absence of a nass, ijtihad still observes both
the letter and spirit of the sources which the mujtahid has mastered through his general knowledge.
Since ijtihad is founded on sound authority in the first place, the unanimous agreement of all the
mujtahidun on a particular ruling indicates that there is clear authority in the Shari'ah to sustain their
consensus. In the event of this authority being weak or speculative, we can only expect disagreement
(ikhtilaf), which would automatically preclude consensus. Ijma' in other words, accounts for its own
authority.
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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.
[52. Shawkani, Irshad, p. 79; Khallaf, `Ilm, p.48.]
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.
Khallaf, `Ilm, p.49.]
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.
[54. Shafi'i, Risalah, p.205; Abu Zahrah, Usul, p.158.]
It is due partly to their concern over the feasibility of ijma` that according to the Zahiris and Imam
Ahmad ibn Hanbal ijma' refers to the consensus of the Companions alone. Imam Malik on the other
hand confines ijma` to the people of Madinah, and the Shi'ah Imamiyyah recognise only the agreement
of the members of the Prophet's family (ahl al-bayt). In Shi'i jurisprudence, ijma` is inextricably linked
with the Sunnah. For the agreement of the ahl al-bayt (that is, their recognised Imams), automatically
becomes an integral part of the Sunnah. `In the Shi'ite view', as Mutahhari explains, `consensus goes
back to the Sunnah of the Prophet [...]. Consensus is not genuinely binding in its own right, rather it is
binding inasmuch as it is a means of discovering the Sunnah.
[55. Amidi, Ihkam, I, 230. Mutahhari, Jurisprudence, p.20.]
In
support of their argument that ijma is confined to the ahl al-bayt, the Shi'i ulema have referred to the
Qur'an (al-Ahzab 33:33): `God wishes to cleanse you, the people of the house [of the Prophet], of
impurities.' The Shi'i doctrine also relies on the Hadith in which the Prophet is reported to have said, `I
am leaving among you two weighty things, which, if you hold by them, you will not go astray: The
Book of God, and my family.'
The reference in this Hadith, according to its Shi'i interpreters, is to 'Ali, Fatimah, Hasan and Husayn.
The Sunnis have maintained, however, that the ayah in sura al-Ahzab was revealed regarding the wives
of the Prophet and that the context in which it was revealed is different. Similarly, while quoting the
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foregoing Hadith, al-Amidi observes: `doubtlessly the ahl al-bayt enjoy a dignified status, but dignity
and descent are not necessarily the criteria of one's ability to carry out ijtihad.
[56. Amidi, Ihkam, I, 246ff.]
There is yet another argument to suggest that ijma' is neither possible nor, in fact, necessary. Since
ijma` is founded on ijtihad, the mujtahid must rely on an indication (dalil) in the sources which is either
decisive (qat'i) or speculative (zanni). If the former is the case, the community is bound to know of it,
for a decisive indication in the nusus could not remain hidden from the entire community. Hence there
would be no need for ijma` to substantiate the nass or to make it known to the people. Furthermore,
when there is qat'i indication, then that itself is the authority, in which case ijma' would be redundant.
Khallaf, `Ilm, p. 49.]
Ijma`, in other words, can add nothing to the authority of a decisive nass. But if the
indication in the nass happens to be speculative, then once again there will be no case for ijma': a
speculative indication can only give rise to ikhtilaf, not ijma'.
[58. Khallaf, `Ilm, p 49; Shawkani, Irshad, p.79.]
According to a report, `Abdullah b. Ahmad b. Hanbal quoted his father to have said: It is no more than
a lie for any man to claim the existence of ijma`. Whoever claims ijma` is telling a lie.
Shawkani, Irshad, p.73.]
The jumhur ulema, however, maintain that ijma' is possible and has occurred in the
past, adding that those who deny it are only casting doubt on the possibility of something which has
occurred. Note for example the ijma' of the Companions on the exclusion of the son's son from
inheritance, when there is a son; and their ijma' on the rule that land in the conquered territories may not
be distributed to the conquerors; or their ruling that consanguine brothers are counted as full brothers in
the absence of the latter.
[60. Abu Zahrah, Usul, p.159.]
This last rule is based on a Hadith in which the Prophet
counted them both as brothers without distinguishing the one from the other.
Principles of Islamic Jurisprudence ~ Kamali 170
[59. Amidi, Ihkam, I, 198;
[61. Abu Zahrah, Usul, p.165.]
The
ijma' that is recorded on these issues became standard practice during the period of the first four
caliphs, who often consulted the Companions and announced their collective decisions in public.
Doctrine, p.164.]
`Abd al-Wahhab Khallaf is of the view that an ijma` in accordance with its classical definition is not
feasible in modern times. Khallaf adds that it is unlikely that ijma` could be effectively utilised if it is
left to Muslim individuals and communities without there being a measure of government intervention.
But ijma' could be feasible if it were to be facilitated by the ruling authorities. The government in every
Muslim country could, for example, specify certain conditions for attainment to the rank of mujtahid,
and make this contingent upon obtaining a recognised certificate. This world enable every government
to identify the mujtahidun and to verify their views when the occasion so required When the views of
all the mujtahidun throughout the Islamic lands concur upon a ruling concerning an issue, this becomes
ijma`, and the ruling so arrived at becomes a binding hukm of the Shari'ah upon all the Muslims of the
world.
[63. Khallaf, `Ilm, pp. 49-50.]
The question is once again asked whether the classical definition of ijma' has ever been fulfilled at any
period following the demise of the Prophet. Khallaf answers this question in the negative, although
[57.
[62. Hasan,some ulema maintain that the ijma ' of the Companions did fulfill these requirements. Khallaf observes
that anyone who scrutinises events during the period of the companions will note that their ijma'
consisted of the agreement of the learned among them who were present at the time when an issue was
deliberated, and the ruling which followed was a collective decision of the shura. When the caliph Abu
Bakr could not find the necessary guidance for settling a dispute in the Qur'an or the Sunnah, he would
convene the community leaders for consultation, and if they agreed on an opinion, he would act upon it.
The community leaders so convened did not include everyone; many were, in fact, on duty in Mecca,
Syria, the Yemen, etc. There is nothing in the reports to suggest that Abu Bakr postponed the settlement
of disputes until a time when all the mujtahidun of the age in different cities reached an agreement. He
would instead act on the collective decision of those who were present. The practice of 'Umar b. alKhattab
corresponded with that of his predecessor, and this is what the fuqaha
have referred to as ijma`.
This
form of
ijma' was
only practiced during the period of the Companions, and intermittently under the
Umayyads
in al-Andalus when in the second Islamic century they set up a council of ulema for
consultation
in legislative affairs (tashri'
). References are found, in the works of some ulema of the
Andalus,
to the effect that so-and-so was the `learned member' of the council.
With the exception of these periods in the history of Islam, no collective ijma' is known to have taken
place on any medical matter. The mujtahidun were engaged in their juridical activities as individuals,
whose views either agreed or disagreed with those of the other mujtahidun. The most that a particular
mujtahid was able to say on any particular matter was that `no disagreement is known to exist on the
hukm of this or that incident'.
Types of Ijma `
[64. Khallaf, `Ilm, p.50.]
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.
c. 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.
d.
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
Principles of Islamic Jurisprudence ~
Kamali 171
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.
Khallaf, `Ilm, p. 51; Shawkani, Irshad, p.72.]
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.
[66. Shawkani, Irshad, p.72, Abu Zahrah, Usul, p.163.]
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`, alGhazali
tells us, 'provided that the tacit agreement is accompanied by indications of approval on the part
of
those who are silent.'
[67. Ghazali, Mustasfa, I, 121; Encyclopedia of Islam (New Edition) III, 1024.]
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.
[68. Khallaf, Ilm, p.51.]
The next topic that needs to be taken up in this context is the 'Madinese consensus', or ijma' ahl alMadinah.
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
Principles of Islamic Jurisprudence ~ Kamali 172
[65.
binds the next generation but also its own participants, as it would only be reasonable to expect that if
ijma` did not bind its participants, it should not bind anyone else either.
Principles of Islamic Jurisprudence ~ Kamali 160
[14. Shawkani,
[16. Amidi,
[17. Abu Zahrah, Usul,
[18. Shawkani, Irshad, p.71.]
With regard
to the tacit ijma `(for which see below), too, some jurists have held that it is concluded only after the
death of its participants, so that it can be established that none of them have subsequently expressed an
opinion. For when they break their silence they will no longer be regarded as silent participants, and
may even turn a tacit ijma` into an explicit one.The majority of ulema, nevertheless, refuse to place any importance on the `disappearance of the
generation', for in view of the overlapping of generations (tadakhul al-a'sar), it is impossible to
distinguish the end of one generation from the beginning of the next. Thus the period of the
Companions cannot be clearly distinguished from that of the Successors, nor can any other period be so
distinguished from its preceding or succeeding generations.
[19. Amidi, Ihkam, I, 257; Ibn Hazm, Ihkam, IV, 154.]
However, al-Ghazali, to all intents and purposes, has resolved this question by stating that `for the
formation of ijma `, it is enough that agreement should have taken place, even if only for an instant'.
Ghazali, Mustasfa, I, 121.]
When ijma` fulfills the foregoing requirements, it becomes binding (wajib) on everyone. Consequently,
the mujtahidun of a subsequent age are no longer at liberty to exercise fresh ijtihad over the same issue.
For once it is concluded, ijma` is not open to amendment or abrogation (naskh). The rules of naskh are
not relevant to ijma` in the sense that ijma` can neither repeal nor be repealed. This is the majority view,
although some jurists have stated that the constituents of ijma` themselves are entitled to repeal their
own ijma' and to enact another one to its place. But once an ijma' is finalised, especially when all of its
constituents have passed away, no further ijma' may be concluded on the same subject. Should there be
a second ijma `on the same point, it will be of no account.
Proof (Hujjiyyah) of Ijma`
[21. Khallaf, `Ilm, pp. 46-47; Abu Zahrah, Usul, p. 167.]
What proof is there that ijma' is a source of law? The ulema have sought to justify ijma` on the
authority of the Qur'an, the Sunnah, and reason. We shall presently discuss the ayat and the ahadith that
have been quoted in support of ijma'. It should be noted at the outset, however, that the ulema have on
the whole maintained the impression that the textual evidence in support of ijma' does not amount to a
conclusive proof. Having said this, one might add that both al-Ghazali and al-Amidi are of the view that
when compared to the Qur'an, the Sunnah provides a stronger argument in favour of ijma'.
Mustasfa, I, III, Amidi, Ihkam, I, 219.]
1. 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.
Messenger, and those charged with authority among you.']
[23. The ayah (4:59) provides: 'O you who believe, obey God, and obey the
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
Principles of Islamic Jurisprudence ~
Kamali 161
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.
[24. Razi, Tafsir, III, 243.]
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.
[25. Khallaf, `Ilm, p. 47.]
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.
[26. 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.' (Irving's translation, p. 45.)]
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!
The commentators observe that `the way of the believers' in this ayah refers to their 'agreement and the
way that they have chosen', in other words, to their consensus. Adherence to the way of the community
is thus binding, while departure from it is forbidden. Departing from the believers' way has been
approximated to disobeying the Prophet, both of which are forbidden. There are several points that the
commentators have highlighted concerning this ayah. However, before elaborating further, a brief
discussion of the other Qur'anic passages which are quoted in support of consensus would be useful.
The Qur'an is expressive of the dignified status that God has bestowed on the Muslim community. Thus
we read in sura Al-`Imran (3:109): `You are the best community that has been raised for mankind. You
enjoin right and forbid evil and you believe in God.' This ayah attests to some of the outstanding merits
of the Muslim community. It is thus argued that had the community been capable of agreeing on an
error, the Qur'an would not have praised it in such terms. It is further noted that the contents of this
ayah give some indication as to the meaning of the phrase `the believers' way'.
On the same theme, we read in sura al-Baqarah (2:143): `Thus We have made you a middle nation
[ummatan wasatan], that you may be witnesses over mankind.' Literally, wasat means `middle',
implying justice and balance, qualities which merit recognition of the agreed decision of the community
Principles of Islamic Jurisprudence ~
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and the rectitude of its way. Furthermore, it is by virtue of uprightness that God has bestowed upon the
Muslim community the merit of being a `witness over mankind'.
[27. Amidi, Ihkam, I, 211.]
In yet another reference to the ummah, the Qur'an proclaims in sura al-A'raf (7:181): `And of those We
created are a nation who direct others with truth and dispense justice on its basis.' There are three other
ayat which need to be quoted. These are:
Al-'Imran (3:102):`Cling firmly together to God's rope and do not separate.'
This ayah obviously forbids separation (tafarruq). Since opposition to the ijma' is a form of tafarruq, it
is therefore prohibited.
[28. Amidi, Ihkam, I, 217; Ghazali, Mustasfa, I, 111.]
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.'
[29. Ghazali, Mustasfa, I, 111.]
By implication (i.e., divergent implication -mafhum al-mukhalafah), this ayah too upholds the authority
of all that is agreed upon by the community.
[30. Ghazali, Mustasfa, I, 111.]
Having quoted all the foregoing ayat, al-Ghazali observes that 'all of these are apparent indications
(zawahir) none of which amounts to a clear nass on the subject of ijma `.' Al-Ghazali adds that of all
these, the ayah at 4:115 is closest to the point. For it renders adherence to the `believers' way' an
obligation. Al-Shafi`i has also quoted it, and has drawn the conclusion that this ayah provides a clear
authority for ijma `. According to him, following a way other than that of the believers is haram, and
following the believers' way is wajib.
[31. Ghazali, Mustasfa, I, 111.]
But despite this, al-Ghazali explains that the
main theme of this ayah is a warning against disobedience to the Prophet and hostility against the
believers. It requires the believers to give the Prophet active support and defend him against enemies. It
is not enough for a believer merely to avoid causing hardship (mashaqqa) to the Prophet; he must
actively help him and obey all his commands and prohibitions. This is the main theme of the ayah. The
Prophet himself has not given it a specific interpretation to warrant a departure from its manifest (zahir)
meaning. The Prophet, in other words, has not made any reference to ijma` in this context From this
Principles of Islamic Jurisprudence ~
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analysis, it would appear that al-Ghazali does not agree with the conclusion that al-Shafi'i has drawn
from this ayah.
Jalal al-Din al-Suyuti's interpretation of the same ayah is broadly in line with what al-Ghazali had to
say. There is no indication in al-Suyuti's Tafsir al-Jalalayn to the effect that this ayah provides an
explicit authority for ijma'.
[32. Suyuti, Tafsir, I, 87.]
Following a path other than that of the believers', according to both al-Suyuti and al-Shawkani, means
abandoning Islam. Al-Shawkani adds: 'A number of ulema have drawn the conclusion that this ayah
provides the authority for ijma'. But this is an unwarranted conclusion, as following a way other than
that of the believers means unbelief, that is, renouncing Islam in favour of another religion.' AlShawkani
further suggests that the occasion of revelation (sha'n
al-nuzul)
of this ayah
relates to the
context
of apostasy. Specifically, it is reported that one Tu`mah b. Ubayraq had accused a Jew of a theft
which
Tu'mah had committed himself. As a result of the revelation of this ayah,
the Jew was cleared of
the
charge but Tu`mah himself renounced Islam and fled to Mecca.
75. For a good summary of Shawkani's views on the subject see Sadr, ijma' , pp. 30-40.]
[33. Shawkani, Fath al-Qadir, I, 515; idem., Irshad, p.
Muhammad 'Abduh and his disciple, Rashid Rida have observed that the ayah under discussion was
revealed concerning the 'way of the believers' during the lifetime of the Prophet, and its application
must be confined to that period. For hostility toward the Prophet was only possible when he was alive.
`Abduh further remarks that to quote this
ayah in support of ijma` leads to irrational conclusions, for it would amount to drawing a parallel
between those who are threatened with the punishment of Hell and a mujtahid who differs with the
opinion of others. A mujtahid, even when he takes an exception to the prevalent opinion, or to the path
followed by other mujtahidun, is still a Muslim, and even merits a reward for his efforts. 'Abduh
concludes that the sha'n al-nuzul of this ayah does not lend support to the conclusion that al-Shafi'i has
drawn from it.
[34. Rashid Rida, Tafsir al-Manar, V, 201. For a similar view see Sadr, Ijma', p.40.]
It is further suggested that the threat in the ayah under discussion is primarily concerned with the first
part of the ayah, namely, disobeying the Prophet, and not necessarily with the second. Hence
divergence from the believers' way is lawful in the absence of opposition to the Prophet. The validity of
this critique is, however, disputed, as the ayah itself does not distinguish between the two parts as such,
and therefore the threat applies equally to both.
[35 Amidi, Ihkam, I, 205.]
Al-Amidi discusses the Qur'anic ayat concerning ijma', and concludes that they may give rise to a
probability (zann) but they do not impart positive knowledge. If we assume that ijma` is a decisive
proof, then establishing its authority on the basis of speculative evidence is not enough. Speculative
Principles of Islamic Jurisprudence ~
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evidence would suffice only if ijma' were deemed to be a speculative doctrine, which is not the case.
Amidi, Ihkam, I, 218.]
2. The Sunnah on Ijma `
The Hadith which is most frequently quoted in support of ijma' reads:
`My community shall never agree on an error.'
ijma' have been quoted by both Ghazali and Amidi as shown in footnote 41 below.]
[37. Ibn Majah, Sunan, II, 1303. Hadith no. 3950. This and a number of other ahadith on
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.
Docrtrine, p.60.]
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.
Principles of Islamic Jurisprudence ~ Kamali 165
[38. Cf. Ahmad Hasan,
[39. Ghazali, Mustasfa, I, 111.]
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:
[365. 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 b. Mas'ud which is as follows:
'Whatever the Muslims deem to be good is good in the eyes of God.
[40. Amidi considers this to be
a Hadith whose chain of narration goes back to the Prophet (see his Ihkam, I, 214). Ahmad Hasan points out that Muhammad b. Hasan al-
Shaybani initially reported this as a Hadith, but later it was attributed to Ibn Mas'ud (see his Doctrine, p. 37).]
Having quoted these (and other) ahadith, both al-Ghazali and al-Amidi observe that their main theme
and purport has not been opposed by the Companions, the Successors and others throughout the ages,
and that everyone has agreed on their broad outline. The ulema have continued to rely on them in their
exposition of the general and detailed rules of the Shari'ah. In answer to the point that all these are
solitary (ahad) reports which do not amount to a definitive proof, the same authors observe that the
main purport of these ahadith nevertheless conveys positive knowledge, and that the infallibility of the
ummah is sustained by their collective weight
[41. Ghazali, Mustasfa; I, 111; Amidi, Ihkam, I, 220-221.]
The point may be
illustrated by saying that we know the courage of `Ali, the generosity of Hatim, the erudition of alShafi'i
in fiqh,
and the esteem in which the Prophet held his Companions, despite the absence of
Mutawatir
reports
on these subjects. Although the foregoing ahadith
are all Ahad
and could be
subjected
to doubt if taken individually, their collective import may, nevertheless, not be denied.
Ghazali, Mustasfa, I, 112.]
As to the question whether 'dalalah' and `khata' ', in these ahadith (especially in the first four) could
mean disbelief (kufr) and heresy (bid'ah) with the view that the Prophet might have meant that his
Principles of Islamic Jurisprudence ~
Kamali 166
community shall not fall into disbelief, it is observed that khata' is general and could include kufr but
that dalalah does not, for dalalah only means an error or erroneous conduct.
[43. Ghazali, Mustasfa, I, 112: We find in
the Qur'an, for example, in an address to the Prophet Muhammad: And He found then wondering [dallan] and gave thee guidance (al-Duha, 93:7). In another place
the Qur'an relates of Moses the following words: `He said: I did it then [i.e. slayed the Egyptian] when I was in error' (al-Shu'ara', 26:20). In both these instances
dalal does not imply disbelief. Similarly the Arabic expression dalla fulan `an al-tariq (so-and-so lost his way) confirms the same meaning of dalal.]
If
dalalah meant disbelief, then the ahadith under discussion would fail to provide an authority for the
infallibility of the ummah, but if it meant an error only, then they could provide such authority.
Mustasfa, I, 112: We find in the Qur'an, for example, in an address to the Prophet Muhammad: And He found then wondering [dallan] and gave thee guidance (al-
Duha, 93:7). In another place the Qur'an relates of Moses the following words: `He said: I did it then [i.e. slayed the Egyptian] when I was in error' (al-Shu'ara',
26:20). In both these instances dalal does not imply disbelief. Similarly the Arabic expression dalla fulan `an al-tariq (so-and-so lost his way) confirms the same
meaning of dalal.]
It is further observed that the article 'la' in the Hadith under discussion could either imply negation
(nafy) or prohibition (nahy). If the latter, it would simply prohibit the people from deviation, and as
such the Hadith could not sustain the notion of infallibility for the ummah.
Principles of Islamic Jurisprudence ~ Kamali 167
[44. Ghazali,
[45 Sadr Ijma', p. 43: An example of the 'la of
prohibition' is the Qur'anic prohibition concerning adultery which reads la taqrabu al-zina (do not approach zina). With a la of prohibition the Hadith would simply
instruct the community not to agree upon an error.]
According to another observer, the manifest (zahir) meaning of the
Hadith is that the ummah abstains from a collective agreement on an error. The Hadith, in other words,
precludes a general agreement on an error, but not the error itself. These are some of the doubts which
have been expressed concerning the precise meaning of the Hadith. They may or may not be correct,
but so long as the Hadith is open to such doubts, it cannot provide a decisive proof (dalil qat'i) for
ijma'.
[46. Sadr. Ijma`, 43.]
Muhammad `Abduh has observed that the Hadith in question does not speak of
ijma` at all, nor does it sustain the notion of infallibility for the community. It is an exaggerated claim to
read ijma' into this Hadith regardless of whether reference is made to the agreement of the jurists or to
that of the community at large.
[47. Rida, Tafsir al-Manar, V, 205.]
It is further suggested that some of the foregoing ahadith (nos. 4, 5 and 6 in particular) simply
encourage fraternity and love among the members of the community, and, as such, do not en-visage the
notion of ijma' as a source of law. As for our Hadith number seven, although al-Ghazali quotes it, it is
not relevant to ijma`, as it obviously means that a group of the ummah shall remain on the right path,
not the ummah as a whole. The Shi'ah Imamiyyah have quoted this Hadith in support of their doctrine
of the ijma' of ahl al-bayt, which refers to the members of the family of the Prophet.
The word `ummah' (or jama'ah) in the foregoing ahadith means, according to one view, the
overwhelming majority of Muslims. This view is supported in a number of statements from the
Companions. According to another view, jama'ah refers to the scholars of the community only. The
masses, it is argued, look up to the scholars from whom they acquire knowledge of law and religion,
and it is the latter whose consensus is contemplated in the relevant ahadith. According to yet another
opinion, ummah (and jama'ah) refers only to the Companions, who are the founding fathers of the
[48. Sadr, Ijma', pp. 44-45.]
Muslim community. According to this interpretation, ummah and jama'ah in all the foregoing ahadith
refer to the Companions only.
[49. Cf. Hasan, Doctrine, p.59.]
And finally, ummah and jama`ah refer to the whole of the Muslim community and not to a particular
section thereof. The grace of 'ismah, according to this view, is endowed on the whole of the community
without any reservation or specification. Thus is the view of al-Shafi'i, who wrote in his Risalah: 'And
we know that the people at large cannot agree on an error or on what may contradict the Sunnah of the
Prophet.
[50. Shafi'i's Risalah (trans. Khadduri), p.285.]
Having discussed the ahadith relating to ijma', Ahmad Hasan observes that they are inconclusive. All of
them emphasise unity and integration. Some of them are predictive and others circumstantial: They may
mean ijma`, or something else.' Hence the argument that they provide the authority for ijma' is
'definitely subjective'. The same author elaborates that:
a. There was no idea of ijma` as a doctrine of jurisprudence in the early period;
b.
c. The jurists could not determine a definite meaning for 'ummah' or Jama'ah ; and
d.
e. Ahadith which convey a general meaning should not be restricted to a particular point of
f.
view.
[51. Hasan, Doctrine, pp.59-60.]
Notwithstanding the doubts and uncertainties in the nusus, the majority of ulema have concluded that
the consensus of all the mujtahidun on a particular ruling is a sure indication that the word of truth has
prevailed over their differences; that it is due to the strength of that truth that they have reached a
consensus. This rational argument in support of ijma` has been further advanced to the effect that
consensus upon a shar'i ruling is bound to be founded on sound ijtihad. In exercising ijtihad, the
mujtahid is normally guided by certain rules and guidelines. Ijtihad often consists of an interpretation of
the nass, or of a rational extension of its ruling. Even in the absence of a nass, ijtihad still observes both
the letter and spirit of the sources which the mujtahid has mastered through his general knowledge.
Since ijtihad is founded on sound authority in the first place, the unanimous agreement of all the
mujtahidun on a particular ruling indicates that there is clear authority in the Shari'ah to sustain their
consensus. In the event of this authority being weak or speculative, we can only expect disagreement
(ikhtilaf), which would automatically preclude consensus. Ijma' in other words, accounts for its own
authority.
Principles of Islamic Jurisprudence ~
Kamali 168
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.
[52. Shawkani, Irshad, p. 79; Khallaf, `Ilm, p.48.]
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.
Khallaf, `Ilm, p.49.]
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.
[54. Shafi'i, Risalah, p.205; Abu Zahrah, Usul, p.158.]
It is due partly to their concern over the feasibility of ijma` that according to the Zahiris and Imam
Ahmad ibn Hanbal ijma' refers to the consensus of the Companions alone. Imam Malik on the other
hand confines ijma` to the people of Madinah, and the Shi'ah Imamiyyah recognise only the agreement
of the members of the Prophet's family (ahl al-bayt). In Shi'i jurisprudence, ijma` is inextricably linked
with the Sunnah. For the agreement of the ahl al-bayt (that is, their recognised Imams), automatically
becomes an integral part of the Sunnah. `In the Shi'ite view', as Mutahhari explains, `consensus goes
back to the Sunnah of the Prophet [...]. Consensus is not genuinely binding in its own right, rather it is
binding inasmuch as it is a means of discovering the Sunnah.
[55. Amidi, Ihkam, I, 230. Mutahhari, Jurisprudence, p.20.]
In
support of their argument that ijma is confined to the ahl al-bayt, the Shi'i ulema have referred to the
Qur'an (al-Ahzab 33:33): `God wishes to cleanse you, the people of the house [of the Prophet], of
impurities.' The Shi'i doctrine also relies on the Hadith in which the Prophet is reported to have said, `I
am leaving among you two weighty things, which, if you hold by them, you will not go astray: The
Book of God, and my family.'
The reference in this Hadith, according to its Shi'i interpreters, is to 'Ali, Fatimah, Hasan and Husayn.
The Sunnis have maintained, however, that the ayah in sura al-Ahzab was revealed regarding the wives
of the Prophet and that the context in which it was revealed is different. Similarly, while quoting the
Principles of Islamic Jurisprudence ~
Kamali 169
foregoing Hadith, al-Amidi observes: `doubtlessly the ahl al-bayt enjoy a dignified status, but dignity
and descent are not necessarily the criteria of one's ability to carry out ijtihad.
[56. Amidi, Ihkam, I, 246ff.]
There is yet another argument to suggest that ijma' is neither possible nor, in fact, necessary. Since
ijma` is founded on ijtihad, the mujtahid must rely on an indication (dalil) in the sources which is either
decisive (qat'i) or speculative (zanni). If the former is the case, the community is bound to know of it,
for a decisive indication in the nusus could not remain hidden from the entire community. Hence there
would be no need for ijma` to substantiate the nass or to make it known to the people. Furthermore,
when there is qat'i indication, then that itself is the authority, in which case ijma' would be redundant.
Khallaf, `Ilm, p. 49.]
Ijma`, in other words, can add nothing to the authority of a decisive nass. But if the
indication in the nass happens to be speculative, then once again there will be no case for ijma': a
speculative indication can only give rise to ikhtilaf, not ijma'.
[58. Khallaf, `Ilm, p 49; Shawkani, Irshad, p.79.]
According to a report, `Abdullah b. Ahmad b. Hanbal quoted his father to have said: It is no more than
a lie for any man to claim the existence of ijma`. Whoever claims ijma` is telling a lie.
Shawkani, Irshad, p.73.]
The jumhur ulema, however, maintain that ijma' is possible and has occurred in the
past, adding that those who deny it are only casting doubt on the possibility of something which has
occurred. Note for example the ijma' of the Companions on the exclusion of the son's son from
inheritance, when there is a son; and their ijma' on the rule that land in the conquered territories may not
be distributed to the conquerors; or their ruling that consanguine brothers are counted as full brothers in
the absence of the latter.
[60. Abu Zahrah, Usul, p.159.]
This last rule is based on a Hadith in which the Prophet
counted them both as brothers without distinguishing the one from the other.
Principles of Islamic Jurisprudence ~ Kamali 170
[59. Amidi, Ihkam, I, 198;
[61. Abu Zahrah, Usul, p.165.]
The
ijma' that is recorded on these issues became standard practice during the period of the first four
caliphs, who often consulted the Companions and announced their collective decisions in public.
Doctrine, p.164.]
`Abd al-Wahhab Khallaf is of the view that an ijma` in accordance with its classical definition is not
feasible in modern times. Khallaf adds that it is unlikely that ijma` could be effectively utilised if it is
left to Muslim individuals and communities without there being a measure of government intervention.
But ijma' could be feasible if it were to be facilitated by the ruling authorities. The government in every
Muslim country could, for example, specify certain conditions for attainment to the rank of mujtahid,
and make this contingent upon obtaining a recognised certificate. This world enable every government
to identify the mujtahidun and to verify their views when the occasion so required When the views of
all the mujtahidun throughout the Islamic lands concur upon a ruling concerning an issue, this becomes
ijma`, and the ruling so arrived at becomes a binding hukm of the Shari'ah upon all the Muslims of the
world.
[63. Khallaf, `Ilm, pp. 49-50.]
The question is once again asked whether the classical definition of ijma' has ever been fulfilled at any
period following the demise of the Prophet. Khallaf answers this question in the negative, although
[57.
[62. Hasan,some ulema maintain that the ijma ' of the Companions did fulfill these requirements. Khallaf observes
that anyone who scrutinises events during the period of the companions will note that their ijma'
consisted of the agreement of the learned among them who were present at the time when an issue was
deliberated, and the ruling which followed was a collective decision of the shura. When the caliph Abu
Bakr could not find the necessary guidance for settling a dispute in the Qur'an or the Sunnah, he would
convene the community leaders for consultation, and if they agreed on an opinion, he would act upon it.
The community leaders so convened did not include everyone; many were, in fact, on duty in Mecca,
Syria, the Yemen, etc. There is nothing in the reports to suggest that Abu Bakr postponed the settlement
of disputes until a time when all the mujtahidun of the age in different cities reached an agreement. He
would instead act on the collective decision of those who were present. The practice of 'Umar b. alKhattab
corresponded with that of his predecessor, and this is what the fuqaha
have referred to as ijma`.
This
form of
ijma' was
only practiced during the period of the Companions, and intermittently under the
Umayyads
in al-Andalus when in the second Islamic century they set up a council of ulema for
consultation
in legislative affairs (tashri'
). References are found, in the works of some ulema of the
Andalus,
to the effect that so-and-so was the `learned member' of the council.
With the exception of these periods in the history of Islam, no collective ijma' is known to have taken
place on any medical matter. The mujtahidun were engaged in their juridical activities as individuals,
whose views either agreed or disagreed with those of the other mujtahidun. The most that a particular
mujtahid was able to say on any particular matter was that `no disagreement is known to exist on the
hukm of this or that incident'.
Types of Ijma `
[64. Khallaf, `Ilm, p.50.]
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.
c. 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.
d.
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
Principles of Islamic Jurisprudence ~
Kamali 171
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.
Khallaf, `Ilm, p. 51; Shawkani, Irshad, p.72.]
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.
[66. Shawkani, Irshad, p.72, Abu Zahrah, Usul, p.163.]
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`, alGhazali
tells us, 'provided that the tacit agreement is accompanied by indications of approval on the part
of
those who are silent.'
[67. Ghazali, Mustasfa, I, 121; Encyclopedia of Islam (New Edition) III, 1024.]
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.
[68. Khallaf, Ilm, p.51.]
The next topic that needs to be taken up in this context is the 'Madinese consensus', or ijma' ahl alMadinah.
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
Principles of Islamic Jurisprudence ~ Kamali 172
[65.
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