Dr. Mohammad Omar Farooq
Associate Professor of Economics and Finance
Upper Iowa University
June 2006
[Draft: Feedback welcome]
Ijma or consensus is
one of the four sources of Islamic jurisprudence.
“Ijma is the verbal noun of the Arabic
word ajma’a, which as two meanings: to determine and to agree upon
something. To give an example of the former, the expression ajma’a fulan
‘ala kadha, means that ‘so-and-so decided upon such-and-such’. This usage
of ajma’a is found both in the Qur’an and in the hadith. 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.”[1]
The Qur'an and the Sunnah are two primary and
foundational sources, while ijma and qiyas (analogical reasoning)
are two secondary sources.
“Classical
Muslim methodology (usul) refers to the basic textual sources and
methods used in producing Muslim attitudes in different spheres of life
including international relations. These sources are the Qur'an, Sunnah, ijma
(consensus), and ijtihad (the use of human reason or aql) in elaboration
and interpretation of the Shari'ah. Ijtihad includes the fourth major
source of Muslim thought, the qiyas (analogy) ...”[2]
"...
no one at all should [give an opinion] on a specific matter by merely saying:
It is permitted or prohibited, unless he is certain of [legal] knowledge, and
this knowledge must be based on the Qur'an and the sunna, or [derived] from ijma
(consensus) and qiyas (analogy)."[3]
From
dogma to norms to laws/codes, ijma is recognized to have a pivotal place
in Islamic discourse and socio-religious unity.
"This
important doctrine played a vital role in the integration of the Muslim
community. In its early phase it manifested itself as a general average
opinion, a common feeling of the community, and as a binding force of the body
of law against unsuccessful and stray opinions. In the classical period it
developed with its complex theory and ramifications. It became a decisive
authority in religious affairs. All religious doctrines were standardized
through ijma. Its rejection was considered heresy, indeed sometimes
tantamount to unbelief."[4]
"It
must be noted ... that unlike the Qur'an and Sunnah, ijma does not
directly partake of 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."[5]
"Ijma plays a crucial role
in the development of Shari'a. The existing body of fiqh is the product of a
long process of ijtihad and ijma."[6]
“Only
ijma can put an end to doubt, and when it throws its weight behind a
ruling, this becomes decisive and infallible. Ijma has primarily been
regarded as the instrument of conservatism and of preserving the heritage of
the past. ... Ijma enhances the authority of rules that are of
speculative origin. Speculative rules do not carry a binding force, but once an
ijma is held in their favor, they become definitive and binding. ...
Lastly, ijma represent authority. Once an ijma is established it
tends to become an authority in its own right, and its roots in the primary
sources are gradually weakened or even lost.”[7]
Interestingly,
despite the well-established position of ijma in Islamic jurisprudence,
common Muslims generally are unfamiliar with the reality that ijma as an
authority or source of Islamic jurisprudence stands on rather thin ice. While ijma
has played to an extent an integrative role in Islamic legal discourse, it has
also contributed to some entrenched divisiveness. But even more importantly is
the existence of abuses of ijma, in terms of it being used as a
frequently cited tool to quieten opponents. Abuse has occurred through the
frequent claim of ijma applying to something, where no ijma is
apparent. This issue is vital, because orthodox opinion considers that if there
is an ijma on something, whether referring to dogma or legal issues, it
is binding upon the Muslims.
Those
who are not familiar with ijma
as a concept or dogma might wonder why an unambiguous definition of the term
has not been alluded to from the start; there is a valid reason for this – the
reader might be surprised (even shocked) to learn that there is no consensus (ijma) even about the
definition of ijma.
In this essay, the notion of ijma is discussed in sufficient detail to
introduce the common Muslims so that they are familiar with the uses and abuses
of this otherwise valid tool of Islamic jurisprudence. It also aims to provide
ample illustration and assist in the recognition and appreciation of the fact
that there is still room for utilizing ijma, if the prevalent problems
and limitations are dealt with and are appropriately adapted to ensure its
relevancy in the contemporary time.
Orthodox emphasis on ijma
This
segment draws extensively from Ahmad Hasan's comprehensive work, where all the
references are fully annotated. From the sources indicated the following have
been stated about ijma.
Al-Baydawi
(d. 482 A.H.), a Hanafi scholar:
"One who rejects the doctrine of ijma rejects the religion at large. This is because the orbit of all the fundamentals of religion and their returning point is the ijma of Muslims."[8]
"One who rejects the doctrine of ijma rejects the religion at large. This is because the orbit of all the fundamentals of religion and their returning point is the ijma of Muslims."[8]
Al-Sarakhsi
(d. 490 A.H), another Hanafi scholar:
"One who denies the validity of ijma seeks to indirectly demolish religion per se."[9]
"One who denies the validity of ijma seeks to indirectly demolish religion per se."[9]
Abd
al-Malik al-Juwayni (d. 478 A.H.), a Shafi'i scholar:
"Ijma is the strap and support of the Shari'ah and to it the Shari'ah owes its authenticity."[10]
"Ijma is the strap and support of the Shari'ah and to it the Shari'ah owes its authenticity."[10]
Al-Qarafi
(d. 684 A.H.), a Maliki jurist:
"Ijma is anterior in respect of decisiveness to the other three sources of law, namely the Qur'an, Sunnah and Qiyas."[11]
"Ijma is anterior in respect of decisiveness to the other three sources of law, namely the Qur'an, Sunnah and Qiyas."[11]
Notably,
al-Juwayni stakes Shari'ah's authenticity not on the Qur'an, Sunnah or qiyas,
but on ijma. Al-Qarafi has gone even much further. In terms of
decisiveness, he regarded ijma as holding a position higher than that of
the Qur'an, Sunnah and qiyas.
“Some
jurists have exaggerated the value of ijma so much so that they consider it
prior to the Qur'an and Sunnah. In favour of this view it is argued that both
the Qur'an and Sunnah are liable to abrogation and interpretation. But ijma is
infallible and decisive. There is no room for doubt if a rule is supported by
ijma. It is also prior to qiyas (analogy) because the latter is
sometimes liable to fallacy. It is worthy of remark that the ijma which
is considered prior to the Qur'an and Sunnah is the kind which is decisive (qat'i),
verbal (lafzi), visible or tangible (mushahad), or reported by tawatur.
As regards speculative ijma, the Qur'an and Sunnah are prior to it. Supporting
this viewpoint al-Isfahani remarks that ijma is superior to all sources of law
(adillah) and no authority can be basically compared with it. He ascribed this
view to a large number of scholars.”[12]
The claim of ijma is all too common
By
way of illustration a miscellaneous list of assertions about ijma is
presented below to demonstrate how common it is to claim that something
constitutes ijma. Interestingly, contrary to their claims, hardly any in
the list represent a consensus at all: unwarranted affirmations of ijma
constitute misrepresentation of the term.
Three talaq at one sitting is valid
"The occurrence of three Talaaqs is the mazhab of the Jumhoor (majority) and on this is ijma of the ummat and whosoever opposes this will not be considered in any way."[13]
"The occurrence of three Talaaqs is the mazhab of the Jumhoor (majority) and on this is ijma of the ummat and whosoever opposes this will not be considered in any way."[13]
Taraweeh is 20 rak'ah
Imam Muwaffaq al-Din Ibn Qudama al-Maqdisi (d. 620), the leading Imam of the Hanbali school of thought in his time has declared in his fiqh book: al-Mughni 1/803: "There has been the Companion's consensus (ijma us-Sahabah) on 20 rak'ahs of Taraweeh."[14]
Imam Muwaffaq al-Din Ibn Qudama al-Maqdisi (d. 620), the leading Imam of the Hanbali school of thought in his time has declared in his fiqh book: al-Mughni 1/803: "There has been the Companion's consensus (ijma us-Sahabah) on 20 rak'ahs of Taraweeh."[14]
Interest is prohibited
"All the schools of thought of Muslim jurisprudence hold the unanimous view that riba, usury and interest are strictly prohibited."[15]
"All the schools of thought of Muslim jurisprudence hold the unanimous view that riba, usury and interest are strictly prohibited."[15]
Intentionally missed prayer must be made up
“There is consensus (ijma) of the scholars whose opinion counts that whoever leaves a prayer intentionally must make it up."[16]
“There is consensus (ijma) of the scholars whose opinion counts that whoever leaves a prayer intentionally must make it up."[16]
Women's leadership is prohibited
There is "ijma" (consensus of opinion) among the ummah that female leadership is not permissible. Ijma is the third most important source of Islamic law and cannot be opposed.[17]
There is "ijma" (consensus of opinion) among the ummah that female leadership is not permissible. Ijma is the third most important source of Islamic law and cannot be opposed.[17]
Prophet's burial ground is the most holy place
According to the consensus (ijma) of all the scholars, the piece of land on which rests the blessed body of the Messenger of Allah (Allah bless him and give him peace) is more virtuous than anything and everything which includes the Ka’ba and the throne (arsh) of Allah Most High.[18]
According to the consensus (ijma) of all the scholars, the piece of land on which rests the blessed body of the Messenger of Allah (Allah bless him and give him peace) is more virtuous than anything and everything which includes the Ka’ba and the throne (arsh) of Allah Most High.[18]
Talfiq (mixing of opinions of different madhabs) is invalid
Among the things to note is that the fuqaha' have said that talfiq (piecing together the opinions of more than one mujtahid in one action) is invalid by scholarly consensus (ijma). This is transmitted by Ibn Abidin, and Qasim ibn Qutlubugha of the Hanafis, and Ibn Hajar al-Haytami of the Shafi`is.[19]
Among the things to note is that the fuqaha' have said that talfiq (piecing together the opinions of more than one mujtahid in one action) is invalid by scholarly consensus (ijma). This is transmitted by Ibn Abidin, and Qasim ibn Qutlubugha of the Hanafis, and Ibn Hajar al-Haytami of the Shafi`is.[19]
Tahiyyatul Masjid prayer is a sunna
"It is mentioned in al-Halba [of Ibn Amir Hajj al-Halabi]: Scholarly consensus (ijma) has been mentioned about the prayer of greeting the mosque being a sunna"[20]
"It is mentioned in al-Halba [of Ibn Amir Hajj al-Halabi]: Scholarly consensus (ijma) has been mentioned about the prayer of greeting the mosque being a sunna"[20]
Wiping over socks during travel is allowed
An-Nawawi states, "All those who qualify for ijma (consensus) agree that it is allowed to wipe over the socks--during travelling or at home, if needed or not--even a woman who stays at home or a handicapped person who cannot walk can do so.”[21]
An-Nawawi states, "All those who qualify for ijma (consensus) agree that it is allowed to wipe over the socks--during travelling or at home, if needed or not--even a woman who stays at home or a handicapped person who cannot walk can do so.”[21]
Slaughtering without Allah's name mentioned is not lawful
The great Hanafi jurist, Allamah Ibn Abidin (Allah have mercy on him) explains the above by stating: “Meaning a slaughtered animal will not be lawful to consume (halal) if the name of Allah was intentionally not pronounced whether the slaughterer was a Muslim or from the people of the book (kitabi), because of the (clear) text of the Qur’an and the consensus (ijma) of all the scholars.”[22]
The great Hanafi jurist, Allamah Ibn Abidin (Allah have mercy on him) explains the above by stating: “Meaning a slaughtered animal will not be lawful to consume (halal) if the name of Allah was intentionally not pronounced whether the slaughterer was a Muslim or from the people of the book (kitabi), because of the (clear) text of the Qur’an and the consensus (ijma) of all the scholars.”[22]
Marrying women beyond Ahl al-Kitab is not acceptable
"All Muslim jurists are unanimous (ijma) that the Qur’an’s permission to Muslims to marry the women of the People of the Book (Ahl al-Kitab) is applicable to Jewish and Christian women only and it cannot be extended to any other group."[23]
"All Muslim jurists are unanimous (ijma) that the Qur’an’s permission to Muslims to marry the women of the People of the Book (Ahl al-Kitab) is applicable to Jewish and Christian women only and it cannot be extended to any other group."[23]
Hadrat Abu Bakr's election
”In the Hanbali view the only real Ijma which occurred other than agreement on religious belief was when the infant Muslim community elected Abu Bakr as the first Caliph following the death of the Holy Prophet.”[24]
”In the Hanbali view the only real Ijma which occurred other than agreement on religious belief was when the infant Muslim community elected Abu Bakr as the first Caliph following the death of the Holy Prophet.”[24]
Imam Abu Hanifah was misguided
"Muhammad bin Abdullah al Maliki said I heard Abu Bakr Subjistani telling his followers that 'What do you say when to a Fatwa on which Imam Malik, Shaafi, Imam Auzai, Hasan bin Saleh, Safyan Suhri and their respective followers have an ijma? They [his followers] said that it must be the most correct ruling. Abu Bakr Subjistani then said that these individuals have an ijma that Abu Hanifa is evil and misguided."[25]
"Muhammad bin Abdullah al Maliki said I heard Abu Bakr Subjistani telling his followers that 'What do you say when to a Fatwa on which Imam Malik, Shaafi, Imam Auzai, Hasan bin Saleh, Safyan Suhri and their respective followers have an ijma? They [his followers] said that it must be the most correct ruling. Abu Bakr Subjistani then said that these individuals have an ijma that Abu Hanifa is evil and misguided."[25]
Ijma against Imam Ibn Taymiya
Ibn Taymiyah was put in jail by the agreement of the Muslim scholars of Egypt and
ash-Sham. His imprisonment came as a result of the ijma of the scholars of his age.[26]
Ibn Taymiyah was put in jail by the agreement of the Muslim scholars of Egypt and
ash-Sham. His imprisonment came as a result of the ijma of the scholars of his age.[26]
The Isra (mi'raj) was in body and soul
There is scholarly consensus (ijma) that Prophet Muhammad journeyed in body and soul the night of al-Isra' from Masjid al-Haram in Makkah to Masjid al-Aqsain Jerusalem. Moreover, these scholars indicated the person who denies al-Isra' is a blasphemer for belying the explicit text of the Qur'an.[27]
There is scholarly consensus (ijma) that Prophet Muhammad journeyed in body and soul the night of al-Isra' from Masjid al-Haram in Makkah to Masjid al-Aqsain Jerusalem. Moreover, these scholars indicated the person who denies al-Isra' is a blasphemer for belying the explicit text of the Qur'an.[27]
Kissing the thumbs during the azan
As Sayyid 'Alawi al-Maliki (may Allah be pleased with him!) reported in his dedicated treatise on the rules concerning the use of weak Hadiths, the Manhal Latif, that scholars of the four law-schools [madhhab] concurred by ijma [Consensus]--and that this ijma was recorded from the time of the Mujtahid Imam, Ahmad Ibn Hanbal (may Allah be well pleased with him!) until now--that any Hadith which are Da'if (as long as it is not Mawdu'), can be acted upon for the Fada'il al-A'mal. [28]
As Sayyid 'Alawi al-Maliki (may Allah be pleased with him!) reported in his dedicated treatise on the rules concerning the use of weak Hadiths, the Manhal Latif, that scholars of the four law-schools [madhhab] concurred by ijma [Consensus]--and that this ijma was recorded from the time of the Mujtahid Imam, Ahmad Ibn Hanbal (may Allah be well pleased with him!) until now--that any Hadith which are Da'if (as long as it is not Mawdu'), can be acted upon for the Fada'il al-A'mal. [28]
In dire situations, killing and eating other human beings
”In his magisterial Majmu', Nawawi sometimes, but by no means frequently, explains the reasoning involved in tashih. Consider the following examples, the first of which pertains to the types of otherwise impermissible food that a Muslim can eat should he find himself, say, in a desert where lawful food is not to be had:
”In his magisterial Majmu', Nawawi sometimes, but by no means frequently, explains the reasoning involved in tashih. Consider the following examples, the first of which pertains to the types of otherwise impermissible food that a Muslim can eat should he find himself, say, in a desert where lawful food is not to be had:
Our
associates held that the impermissible foods which a person finds himself compelled
to eat are of two types: intoxicating and non-intoxicating. ... As for the
non-intoxicant type, all foods are permitted for consumption as long as these
do not involve the destruction of things protected under the law (itlaf
ma'sum). He who finds himself compelled to eat is permitted to consume
carrion, blood, swine meat, urine, and other impure substances. There is no
juristic disagreement (khilaf) as to whether he is permitted to kill
fighters against Islam and apostates and to eat them. There are two wajh-opinions**
[though] concerning the married fornicator [zani muhsan],** rebels and
those who refuse to pray (tarik al-salat). The more correct of the two
opinions (asahh) is that he is permitted [to kill and eat them]. Imam
al-Haramayn, the author [Shirazi],** and the majority of jurists (jumhur)
conclusively affirm the rule of permissibility. [In justification of
permissibility] Imam al-Haramayn maintained that this is because the
prohibition [imposed on individual Muslims] to kill these is due to the power
delegated to governing authority [tafwidan ila al-sultan), so that the
exercise of this power is not preempted. When a dire need to eat arises, then
this prohibition ceases to hold."[29]
At
this juncture it is important to comment on Nawawi’s scarcely believable
opinion: it is amazing that the Muslim jurists not only deliberated on the
permissibility of eating other human beings under certain circumstances, but
that they resolved the action - without any juristic disagreements whatever
among themselves – to be permissible. If the permissibility is based on the
sanctity of life, so that if life is at stake the general prohibitions about
impermissible foods are suspended, then, conversely, one would presume that the
same principle of sanctity and fundamental dignity of human life would also
apply to those about to be eaten, and that human beings cannot therefore
constitute one of the items permitted as foods. From this perspective it is
indeed difficult to reconcile with the position of conditional cannibalism,
despite the claim of the lack of any juristic disagreement by the eminent
Muslim scholar concerned. Furthermore, the evidence that justifies the position
– singling out the fighters against Islam, or those Muslims who refuse to pray
or those who married fornicators – lacks specific permissibility from the
primary and secondary sources – the Qur'an and Sunnah, respectively. This type
of opinion demonstrates precisely how Islamic laws and codes have been
overstretched such that fundamental values whether from an Islamic or a human
viewpoint are ignored. It also appears that the jurist did not consider how the
non-Muslims might reciprocate against Muslims – under which circumstances would
the killing and eating of Muslims be permissible for non-Muslims. Moreover,
what people might do in dire circumstances cannot be accurately predicted and
codified. If some people actually faced a situation of this nature and sought
an opinion from the jurists this would be one thing. However, if the opinion
was merely the product of speculative, juristic argument over imaginary
situations then this is unacceptable (contradicting the juristic principle that
states verdicts should be confined to real as opposed to speculative
situations). In essence, a juristic position of this nature violates the
fundamental human dignity upheld by the Qur'an. Killing another human being to
eat to save one’s own life even in dire need cannot be considered to lie within
the acceptable domain of human considerations. To kill another human being in
order to eat to save a life is clearly a perversion of justice, morality and
basic human decency. In this situation, the sacrifice of one’s own life for
others – sinners, persons not of the Muslim faith or enemies – is the correct
action. Overall then, evidence for a consensus of juristic agreement on this
issue is sorely lacking, as adduced from the writings of other scholars:
"If a body of persons dies of hunger, it is not lawful for them to eat the
flesh of anyone of them to save their lives, for the maslahah (i.e.
public interest) is partial and not total."[30]
While
not all the quotes above originate from scholarly sources, the common
application of ijma is all too apparent. Sadly, the cited passages
illustrate the tendency for ijma to be abused nearly as much as it is
used since in most cases a consensus does not, in fact, exist. In many cases, ,
people possess an impression based on erroneous, unwarranted or false claims.
Imam Ibn Taymiya [d. 1328 AH] warned of this.
Ijma
means
that all the Ulama of the Ummah has agreed upon a certain point. And when it is
established on a certain legal point, then it is not rightful for any person to
refuse to accept that. This is so because the entire Ummah cannot have
consensus on error. But there are many problems about which people think
that there is ijma on them, while in fact there is none. Rather in some cases
even the opposite view is correct and is upheld.[31]
It
has been a common practice among Muslim scholars and jurisprudents to claim
consensus (ijma) about almost anything they have given their juristic
opinion on. The very use of the word ijma inspires awe among the pious.
However, the reality is that ijma is a rare occurrence; some might argue
that more often than not it is nothing but a mirage. As AbdulHamid AbuSulayman,
former rector of the International Islamic University, Malaysia, points out
except in a few basic matters, there is hardly any consensus at all.
“Ijma
... is meant to be applied in cases where there is no nass (text) from
the Qur'an or the Sunnah to decide the hukm (rule). ... The only
agreement among jurists based on 'ijma concerns the prayers being five
times a day, the obligation of zakah, etcetera. These subjects, however, are
backed by the Qur'an and Sunnah and the ijma of the companions of the Prophet
(PBUH); they are, in fact, common knowledge. Beyond these fundamentals, no
absolute consensus has been reached on any issue. There is continued
controversy in the different schools of jurisprudence.”[32]
“The
gap between the theory and practice of ijma is reflected in the
difficulty that many jurists have acknowledged to exist in 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.”[33]
Let
alone in the case of ijma, using any of the extant definitions of the
term, broad agreements are also quite uncommon. To appreciate this statement,
consider the case of the Hanafi school, where two disciples, Imam Muhammad and
Imam Abu Yusuf, played a vital role along with Imam Abu Hanifah, the founder,
in shaping the school. Going through al-Marghinani’s Hedaya,[34]
one of the leading texts of Hanafi fiqh based on classical sources, it
is possible to pick a topic almost at random to see how frequently even the
three elders of the Hanafi school of fiqh (Imam Abu Hanifah and his two
disciples) disagree on various issues covered in the book.[35]
Ijma: Definition and lack of consensus
The
problem with ijma begins with the definition of the term. There is no ijma
(consensus) on the definition of ijma (consensus). Careful scrutiny
of the literature bears this point out.
Interestingly,
the issue of the definition of ijma was not raised until the time of
Imam Shafi'i (d. 204 AH). Even the 4th century scholar Abu Bakr al-Jassas (d.
370 AH) did not provide definition. By the end of 4th century attempts by
various scholars to deal with the definition of ijma begin to appear.
These are discussed in detail by Hasan (2003).[36]
Abul
Husayn al-Basri (d. 436 AH): "Agreement of a group (jama'ah) on a
certain matter of by action or abandonment."
Imam
Al-Ghazali (d. 1111 AH): "Agreement of the community of Muhammad on
a religious point."
Al-Amidi:
(d. 1233): "Agreement of all the people of binding and loosing who
belong to the community of Muhammad, in a certain period of time, on a rule
about a certain incidence."
Based
on the various definitions of the term, four broad aspects of an ijma
can be identified. Interestingly, there is no ijma (consensus) about any
of these four aspects:
·
Whose
agreement constitutes ijma?
·
What
competence should the constituent group minimally have?
·
What
time period does an ijma cover?
·
What
subject matters fall within the scope of ijma?
At
this point, it is worthwhile exploring in greater detail: Whose agreement
constitutes ijma?
"According
to the orthodox view, ijma is the unanimous agreement of the community or of
the scholars."[37]
Notably,
the orthodox view above fails to agree on whether it is the consensus of
the entire community or the consensus of the scholars that is specified.
According to Imam Shafi'i, an ijma is not an ijma unless it is of
the entire community. In the introduction to Majid Khadduri’s
translation of Shafi'i's Risala the following is mentioned:
"By
ijma (consensus) Shafi'i does not mean merely the agreement of a few
scholars of a certain town or locality, as the Hijazi and Iraqi jurists seem to
have held, but the majority of leading jurists in Muslim lands. He also
universalized ijma on matters of fundamentals to include agreement of the
Muslim community. On matters of fundamentals arrived at by consensus, Shafi'i
argues, there should be no disagreement (ikhtilaf), but on matters of detail
for which there may be two answers, one answer might be chosen by istihsan
(discretion or preference). The earlier jurists seem to have permitted a
greater degree of discretion than Shafi'i was inclined to accept."[38]
Imam
Malik, Imam Ghazali, and Ibn Hazm (Zahiris) held very different opinions on the
term.
"To
Malik, ijma is of the companions of the Prophet and their successors residing
at Medina."[39]
"Malik ... recognized the ijma of the scholars of his own locality --
Madina."[40]
"Shafi'i's
doctrine of the community at large was opposed by other scholars, including his
own followers, although Ghazali (d. 1111) tried to confine the agreement to
fundamental principles, leaving matters of detail to the consensus of the
scholars. The fundamental weakness in the doctrine of the consensus of the
community was procedural--the lack of an adequate method which would provide
means for the community to arrive at an agreement."[41]
"To
the Zahiris, valid ijma was consensus of the Companions of the Prophet".[42]
"Ibn
Jarir, al-Tabari and Abu Bakr al-Razi regard even a majority
decision as ijma."[43]
And
according to Ibn Taymiya:
"ijma
means that all the Ulama of the Ummah has agreed upon a certain point."[44]
The
Zahiris as well as Imam Ahmad ibn Hanbal confine ijma to the consensus
of the companions [ijma as-sahaba] alone. Interestingly, some proponents
of the Khilafah (Caliphate or Islamic State) in modern times propose ijma
al-sahaba as part of the constitution. In his book The System of Islam [Nizam
al-Islam], Taqiuddin al-Nabhani [d. 1979 AD] includes a draft constitution
for Khilafah or Islamic State.
“Article 12: The only evidences to be
considered for the divine rules (ahkam shara’iah) are: the Qur'an, the Sunnah,
the consensus of the Companions (ijma as-sahabah) and analogy (qiyas).
Legislation cannot be taken from any source other than these evidences.”[45]
While
it is generally agreed that Islamic laws are drawn from four foundational
sources, which include ijma, to specify ijma as ijma al-sahaba
is simply untenable as there is no consensus about the definition of ijma
nor should such matters be so narrowly specified in a constitution, in
exclusion to all other possible meanings or definitions. The case can be made
that there are some things on which there have been ijma as-sahaba,[46]
and there is also a theological or intellectual case that ijma al-sahaba
is the only valid ijma, but since a constitution is a legally binding
document or contract, limiting ijma to ijma as-sahaba alone and
then elevating it to the level of a dogma in its narrow or restricted form is
unwarranted.[47] What
about all those who disagree with this position (and, indeed, the preponderance
of the opinion of the scholars is such that it does not restrict valid ijma
to only ijma as-sahaba)? Indeed, constitutionalizing such dogmas by a
state, in the presence of such significant difference can be a dangerous
proposition.
Furthermore,
this view leads to hardly anything more functional and useful either. The
reason being that the companions did not display a high level of consensus on a
wide variety of issues so as to qualify these as ijma (ijma al-sahaba).
Even though Imam Shafi'i accepts the validity of ijma, he clarifies:
"I
would accept the opinion [of a Companion] if I did not find anything about it
in the Book, or established sunna or consensus, or anything of similar meaning
that would decisively support it, or any analogical deduction. But one
seldom finds an opinion of one Companion that is not contradicted by another."[48]
The
above exposition leads to the conclusion that there is no real agreement over
the foundation of the third source of Islamic jurisprudence, ijma, even
though, according to some commentators, it has even precedence over the Qur'an,
Sunnah and qiyas, due to its definitiveness. Despite this, in orthodox
discussion about the subject, after mentioning the irreconcilable juristic
differences, the general conclusion drawn is just the opposite of what is
expected or warranted:
"The
above discussion clearly shows that the ijma and the majority
decision of the Ummah on a certain interpretation of nass or on a
certain qiyas, ijtihad, or expediential legislation do constitute
law and are deemed to be authoritative in Shari'ah. If such a law has
been enacted by the men of learning and authority in the world of Islam, it is
binding on all the Muslims of the world and if it has been enacted by those of
any one country or region, then it will hold good for them alone.”[49]
Clearly,
nothing appears to undermine the position of ijma as a final authority
in the eyes of the entrenched commentator. So far only the first aspect of ijma,
which deals with defining who it is that constitutes a consensus, has been
discussed and there is a serious lack of agreement by the scholars on this.
When the three other aspects are investigated, the issues become still more
divergent. Yet, the orthodox claim about the authoritativeness of ijma
remains unabashed:
"All
agree that ijma is a final authority. This means that when the ijma has
been arrived at on a certain interpretation of a nass or on a certain ijtihad,
Qiyas or expediential legislation, then such an ijma is
binding on all and must be followed. Differences arise only as to the question
whether there has been an ijma on certain legal point or not. No one
challenges the authority of ijma as such. The controversy hovers round
the point: whether it has been arrived at or not!"[50]
"...
the concept of ijma' as a legal indicator, dalil, carries very
nearly the same authority as the revelational sources [i.e., the Qur'an and the
sunnah] themselves."[51]
The limitation of ijma as a source
It
is important to note that, as for most issues pertaining to ijma, there
is no consensus about what source its authority is derived from. Some scholars
attempted to identify the relevant sections of the Qur'an that support its
status as one of the final authorities of Islamic jurisprudence. Many verses
have been cited as evidence (dalil) of ijma constituting an
authority. Discussion of these is beyond the scope of the present work;
however, a through review of the subject is covered by Hasan (2003).
Unfortunately, these efforts have not been convincing and there are notable
scholars who have countered claim that ijma is a concept based on
Qur'anic sanction.
"Ijma
has been justified on the basis of the Qur'an, Sunnah and reason. The jurists
almost agree that the Qur'anic verses, which are adduced to justify ijma, do
not clearly prove its authority. The traditions of the Prophet have been
quoted copiously in its support. These traditions constitute an evidence,
according to the jurists, more explicit and potent than the Qur'anic verses.”[52]
"Ulama
have on the whole maintained the impression that the textual evidence in
support of ijma does not amount to 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."[53]
Since
neither the Qur'an nor the hadith can be convincingly established as the source
or basis, the question remains unanswered is there any basis for ijma's
authority? Some leading scholars have tried to establish the fallible human
reasoning for the infallibility of ijma as an authoritative foundation
of Islamic jurisprudence. However, even this attempt has not been successful
either. As summarized below, after scrutinizing all the possible alternatives,
Imam Ghazali throws up his hands and asserts that maybe its validity rests
simply on customary norms. In other words, ijma is accepted and
recognized not because of the Qur'an or hadith but because Muslims have
accepted it as a customary norm.
"Although
orthodoxy put its heart and soul in defending ijma on traditional and
rational grounds, it could not convince the opponents. Even some jurists from
among the exponents, like al-Jassas and al-Bazdawi, doubted the infallible
character of the community on the basis of pure human reason. ... Al-Ghazali,
though he strenuously defends ijma on traditional, rational and factual
grounds, seems to be dissatisfied with these arguments. He has recorded in
al-Mankhul his clear-cut verdict that ijma can be defended only on customary
norms. He remarks: 'There is no hope of justifying ijma on the basis of reason.
Authorities based on revelation such as mutawatir traditions and the textual
evidence from the Qur'an do not support it. Substantiating ijma by ijma is
incoherence. Speculative analogy has no place in the decisive sources. These
are the only essential principles of law. There remains no other principle
except customary norms (masalik al-'urf). We might have acquired this
doctrine by means of this source.'"[54]
But
why the preoccupation and fascination of Muslim scholars and jurisprudents with
ijma? The reason is simple: whatever the definition it is considered an
incontrovertible source (dalil) for the pertinent issue/matter.
"Only
ijma can put an end to doubt, and when it throws its weight behind a
ruling, this becomes decisive and infallible. Ijma has primarily been
regarded as the instrument of conservatism and of preserving the heritage of
the past. ... ijma enhances the authority of rules that are of
speculative origin. Speculative rules do not carry a binding force, but once an
ijma is held in their favor, they become definitive and binding. ...
Lastly, ijma represent authority. Once an ijma is established it
tends to become an authority in its own right, and its roots in the primary
sources are gradually weakened or even lost.”[55]
The
most commonly quoted hadith adduced in support of ijma is: The Prophet
said: "My community (ummah) will not agree on an error."[56]
Variations of the same hadith also have been reported in other collections,
such as Jami at-Tirmidhi or Musnad Ahmad.[57]
Of course, by implication, if the community does agree on something, i.e., a
consensus is attained, it is infallible, and thus incontrovertible.
But
a fundamental problem with the above or other hadiths mentioned in support of ijma[58]
is that the traditions in question are not mutawatir[59]
and thus do not yield certainty of knowledge, either in terms of the actual
text or their meaning/implication. In reality, let alone corresponding to the
certainty generated by a mutawatir hadith, this is what is explained in
Sunan Ibn Majah:
According
to al-Zawaid, its isnad contains in it Abu Khaif al-A'ma and his name is Hazim
b. 'Ata who is daif.[60]
Interestingly,
the abovementioned hadith in Ibn Majah has an ending: "When you see some
difference, it is incumbent upon you to adhere to the great majority (as-sawaad
al-a'zam)." The first and second sentences of the hadith leave a serious
gap. While the first sentence states that the ummah will not agree on an error,
the second advises one to adhere to the majority in case of dispute. However,
it is clear that the issue of infallibility, if at all, is bestowed on the
ummah, not on the majority or on the scholars or any specialized or
narrower group of Muslims. It also does not specify any specific time period or
generation. Thus, it should not be difficult to discern the reality that there
are not many issues on which the ummah - the entire ummah, beginning with
the generation of the companions and continuing through the subsequent
generations - has a consensus.
There
are also notable scholars who have rejected this hadith as the basis for ijma.
According to Al-Shawkani (d. 1255 AH), "As to the tradition 'my community
will not agree on an error' and similar other traditions, it should be noted
that the Prophet in these traditions had predicted that a section of his
community will continue to hold to the truth, and prevail over other opposing
groups. This tradition is not relevant to ijma. The other traditions
emphasize the unity and condemn separation from the community. They do not show
that ijma is in itself an independent legal source in the presence of the
Qur'an and the Sunnah."[61]
Shah Waliullah (d. 1176 AH) also echoes al-Shawkani.[62]
There
is yet another important reason why the scholars have all too commonly laid
claim to ijma operating; only mutawatir hadiths yield certainty
of knowledge concerning exactly what the Prophet has said or done, however,
except in the case of a few hadiths (maybe less than merely a dozen), most
other hadiths are not mutawatir (instead the vast majority are ahad;
meaning, solitary narrations) and even if authentic (sahih) their actual
status is probabilistic to varying degrees.[63]
Thus, if ijma (as an infallible source) can be claimed on any matter it
commands much greater respect and adherence.
“With
the popularization of traditions (hadith) towards the end of the second century
of the Hijrah there arose a conflict between the agreed practice and the
isolated traditions. The Mu'tazilah objected to the traditions which ran
counter to the Qur'anic teaching and the generally recognized practices. On the
basis of this criterion they frequently charged orthodoxy with accepting solitary
traditions and deviating from the established practice of the community, i.e. ijma.
This shows the paramount role of ijma which it played in the formulation
of law and dogma in Islam. In view of the supreme importance of this doctrine,
Ibn Qutaybah, in his answer to the criticism of the Mu'tazilah, defends ijma
instead of solitary traditions. He remarks: "We believe that truth is
established on the basis of ijma more than on the basis of tradition (riwayah).
This is because Hadith is subject to oblivion, interpretation, abrogation and
the qualities of reporters. Hadith sometimes states contradictory rules which
are correct in different contexts. ... But ijma is immune to all these
suspicions. ... Even traditions with perfect chain were not sometimes literally
followed by the community."[64]
Indeed,
there are other notable scholars, such as the important scholar of usul
al-fiqh, al-Amidi (d. 631 AH), who conscientiously had reached the conclusion
that even ijma is probabilistic.
“Amidi
seems, when all is said and done, to belong to the camp of those who saw the
Ijma as functioning as a probable indicator of the law, one that could yield
nothing more than opinion. True, he seems, on the issue of the authority of the
Ijma, to try to straddle the fence between the two camps by affirming the near
conclusiveness of the supporting Qur’anic and Sunnaic texts, especially the
latter. But near conclusiveness is not, from a technical point of view the same
thing as conclusiveness, and Amidi finds himself constrained in the end to let
the absolute authority of the Ijma rest upon probability. This being the case,
he has no choice but to regard the Ijma as actually operating as a probable
indicator dependent upon the fallible deliberations of the individual
mujtahid."[65]
Based
on such fundamental problems with the doctrine of ijma, Imam Hazm (who
defines ijma as the consensus of the companions) argued that:
"the
ijma on a large number of legal questions generally claimed by the scholars is
not correct. Some of them are definitely disputed, and others are open to
suspicion."[66]
According
to Imam Ibn Taymiyah:
"ijma
means that all the Ulama of the Ummah has agreed upon a certain point.
... But there are many problems about which people think that there is
ijma on them, while in fact there is none. Rather in some cases even the
opposite view is correct and is upheld.[67]
The
dialog between Imam Shafi'i and his interlocutor in the Risala is quite
illuminating in this context.
633.
He [i.e. the interlocutor] said: Is not an opinion agreed upon in Madina
stronger than a narrative related by an individual? For why should he relate to
us a weak narrative related by one individual and refrain from relating to us a
stronger and binding matter agreed upon [among the scholars]?
634.
[Shafi'i] asked: Supposing someone should tell you: It is because the narrative
is rare and the agreement [about the matter] is too well known to be related;
and should you yourself say: This is a matter agreed upon?
635:
He [the interlocutor] replied: Neither I nor any of the scholars would say:
'This is [a matter] agreed upon,' unless it were [a matter] about which you
would never find a scholar who would not repeat it to you and relate it from a
predecessor, such as that the noon-prayer has four [cycles, rak'as] and that
wine is forbidden, and the like. I sometimes find one who says: 'The matter is
agreed upon,' but I often find scholars in Madina who say the opposite, and
I find that the majority [of scholars] of other cities oppose what is said to
be 'agreed upon.'[68]
It
is reported that Imam Ahmad ibn Hanbal, founder of one of the four orthodox
schools (madhab) made a general assertion:
"Whoever
claims consensus is a liar.”[69]
The
argument of Imam Ibn Hanbal is that one may claim there is no known case of
disagreement or dissent, but a positive claim of ijma (consensus) is
simply not tenable without appropriate evidence.
Below
is a summary of the various issues pertaining to ijma (consensus) on
which there is no ijma (consensus).
|
.
|
Subject
|
Is
there an ijma?
|
|
.
|
.
|
.
|
|
1
|
Definition
of ijma
|
No
ijma
on this
|
|
2
|
Whose
agreement?
|
No
ijma
on this
|
|
3
|
What
should be the competence of the constituent members?
|
No
ijma
on this [Hasan, Chap. V]
|
|
4
|
What
period is covered by an ijma?
|
No
ijma
on this [Hasan, Chap. VI]
|
|
5
|
What
is the scope of the subject-matters of ijma?
|
No
ijma
on this [Hasan, Chap. VII]
|
|
6
|
Source
of ijma's authority (Qur'an, sunnah or ijma)?
|
No
ijma
on this
|
|
7
|
What
is the meaning and scope of Ummah or Jama'ah?
|
|
|
8
|
What
is the meaning of dalal or khata as in the pertinent hadith
that serves as basis for the doctrine of ijma?
|
No
ijma
on this [Hasan, pp. 60-61; Kamali, p. 242]
|
|
9
|
Is
the doctrine of ijma more justified by textual sources or rational reasons?
|
No
ijma
on this [Hasan, pp. 61-63]
|
|
10
|
Was
the selection of Hadrat Abu Bakr as the Khalifa an ijma?
|
No
ijma
on this [Hasan, p. 78]
|
|
11
|
Are
the matters of creeds/dogmas within the scope of ijma?
|
No
ijma
on this [Hasan, p. 105]
|
|
12
|
Are
worldly affairs covered by the scope of ijma?
|
No
ijma
on this [Hasan, p. 105]
|
|
13
|
Does
ijma have to be on the basis of positive expression or can it be by
silence (of some)?
|
No
ijma
on this [Hasan, Chap. VIII]
|
|
14
|
Once
an ijma is reached, can it be modified or changed in future based on
new or further evidence?
|
No
ijma
on this [Hasan, Chap. X]
|
Modern perspectives on ijma
The
emergence of madhabs (schools of jurisprudence) followed by the
recognition of a few of these constituting orthodoxy represents a
systematization of both the methodology and corpus of laws, codes and dogmas.
The doctrine of ijma played a vital role in this process. Diversity of
thought and room for disagreement can represent dynamism in certain respects.
However, it was deemed desirable that broad agreement or near-consensus should
crystallize in each madhab concerning various aspects of worship and
rituals. Clearly, this does not mean that issues concerning whether tarawih
prayer corresponds to 8 or 20 units, or whether amin should be said
aloud in congregational prayer, have been resolved across the madhabs
even over the course of fifteen centuries. Also, while the systematization of
laws and codes have had an integrative effect, it has also contributed toward
rigidity and even intolerance at the inter-madhab level. For example,
although according to the Hanafis, a marriage between a Hanafi male and a
Shafi’i female is valid according to the Shafi’i school it is invalid.[71]
While ijma has been pivotal in enhancing integrative effects at the madhab
level, with regards matters of rituals and worship the corpus of Islamic laws
and codes have become asynchronous not just with the contemporary era, but also
with the very principles and values of Islam that such laws and codes are
supposed to uphold.
That
Muslims are not duty bound to be permanently bound to former ijma is not
a new or modern position. "This principle has been propounded by the
famous Hanafi jurist Abu al-Husr al-Bazdawi in his book Usul al-Fiqh
[Principles of Jurisprudence]. Al-Bazdawi belongs to the fourth and fifth
century of the Hijrah. This work is a great contribution to Islamic
jurisprudence. It is on account of his statement that we can say that consensus
cannot become a source of difficulty for us. If a consensus is reached on some
issue and it is found subsequently to be unsuitable the possibility remains
that we may change it through reasoning and create a new one canceling the old
consensus."[72]
Over
recent centuries the classical definition and treatment of ijma has been
either rejected or challenged almost consistently, with an effort to bring the
doctrine into conformity with the realities of the modern age and in accordance
with the spirit and vision of Islam. Muslim scholars and the intelligentsia in
recent times have not discarded the concept of ijma, but have instead
sought to reinstitute it in a practicable way. Sayyid Ahmad Khan (d. 1315 AH)
"believed that ijma was confused with custom by the masses who were
following custom in the name of ijma."[73]
He recognized the validity of ijma if appropriately supported by textual
evidence. However, he also held that:
"the doctrine of ijma was a
progressive concept. It should march with the time to solve fresh problems.
Hence sometimes he invalidated even the ijma of the Companions on a certain
point contending that a fresh ijma should be substituted for it in view of the
change circumstances."[74]
Muhsin
al-Mulk (d. 1325 AH) and Ubayd Allah Sindhi (d. 1363 AH) are among those who
have tried to redefine or reinterpret ijma.[75]
Muhammad Iqbal (d. 1357 AH) is among those who have taken the modern discourse
on ijma to a new height.[76]
“The
revision of Islamic jurisprudence in the light of modern situation prevailing
in the Muslim world is the principal aim of Iqbal. He thinks a deeper study of
Islamic law will frustrate the advocates of the view that Islamic law is
stationary. The classical Fiqh of Islam requires critical discussion, though
this will offend most of the orthodox Muslims. Fiqh should be changed in view
of the change of circumstances. The founders of Fiqh never claimed finality of
their views. The fundamental legal principles are to be interpreted in the
light of the experience of modern Muslim generation. ... He believes that the
transfer of power of ijtihad to a Muslim legislative assembly is the only
possible form of ijma in modern times. This will also secure contribution from
laymen who possess insight into affairs.”[77]
Among
others of the reformist trend was Muhammad Abduh (d. 1323 AH), former Rector of
al-Azhar in Egypt. He also rejected the commonly quoted hadiths forming the
basis for determining the authoritative position of ijma in Islamic
jurisprudence.[78] He
regarded the classical definition of ijma as erroneous and
impracticable, stating that:
"ijma
means the consensus of the whole Muslim community in a particular
generation."[79]
He
also emphasized the term Ulil amr (those in authority), suggesting that
it was the men in authority who should be elected by the people from the
community themselves.[80]
Al-Sanhuri too emphasized the importance and relevance of ijma for the
development of a "representative government.”[81]
One
of the primary impetuses behind challenging and reinterpreting the doctrine of ijma
in the reformist line is the fact that:
“Ijma played a vital role
in closing the gate of ijtihad. The agreed decisions of the second and third
centuries were irrevocable. Ijtihad was exercised on points not yet settled by ijma.
This continued in every generation; the scholars of subsequent generations
commented on or explained the decisions of the early generations. Henceforth
the gate of ijtihad was closed, though some scholars at various times claimed
to be mujtahid. There is a certain analogy between the decisions taken on the
basis of ijma and those taken by the councils of Christian church. Ijma
in Islam became the touchstone of heresy.”[82]
Ziauddin
Sardar explains how the inclusive and participatory dimension of ijma was lost
and it became a tool for intolerance and exclusivism.
“...
the idea of ijma, the central notion of communal life in Islam, has been
reduced to the consensus of a select few. Ijma literally means consensus
of the people. The concept dates back to the practice of Prophet Muhammad
himself as leader of the original polity of Muslims. When the Prophet Muhammad
wanted to reach a decision, he would call the whole Muslim community – then,
admittedly not very large – to the mosque. A discussion would ensue; arguments
for and against would be presented. Finally, the entire gathering would reach a
consensus. Thus, a democratic spirit was central to communal and political life
in early Islam. But over time the clerics and religious scholars have removed
the people from the equation – and reduced ijma to ‘the consensus of the
religious scholars’. Not surprisingly, authoritarianism, theocracy and
despotism reigns supreme in the Muslim world. The political domain finds its
model in what has become the accepted practice and metier of the
authoritatively ‘religious’ adepts, those who claim the monopoly of exposition
of Islam. Obscurantist Mullahs, in the guise of the 'ulama, dominate Muslim
societies and circumscribe them with fanaticism and absurdly reductive logic.”[83]
The
reformist tendency in regard to ijma and other aspects of Islamic
jurisprudence is aptly summed up by AbdulHamid AbuSulayman:
“The
traditionalists consider ijma the consensus of all Mujtahidin, which in
the contemporary world boils down to the consensus of the authoritative
'ulama'. This view is no longer satisfactory. The ulama no longer necessarily
represent the mainstream of Muslim intellectual and public involvement. Their
system of education does not reflect the changes that are occurring in the
world today. Their opinions therefore often only add to the already existing
confusion.
It
is clear that the simple, traditional concept of ijma is no longer
suitable for a non-classical social system. Law and policymaking, especially in
the field of international relations, involve complex techniques and
considerations that are not susceptible to the old application of ijma.
It
is also clear that ijma on different subjects now requires the consensus
of other segments of society. The application of ijma can no longer be
the exclusive prerogative of the professional Ulama. Moreover, in a rapidly
changing world, the concept of permanent ijma, particularly as regards
the fluid area of international relations, is neither practical nor possible
because of the space-time factor.”[84]
Conclusion
Ijma has been presented
as a source constituting final authority in orthodox Islamic jurisprudence.
Unfortunately, as discussed here, there are serious problems concerning the
functional use of this source. There is also no agreed upon textual basis for
the doctrine in question. Although ijma
appears to have some redeeming features, this very much depends on whether it
can be made to regain its dynamism (in terms of the prerogative of every
generation to reach its own consensus) and to redefine its
consultative-participatory role (in terms of involvement of the pertinent
scholars/experts or the entire community through elected bodies).[85]
“Ijma is not a matter of
consensus of a number of experts or jurists. Its meaning and function should be
worked out in relation to the legislative function in concrete political
systems, where it may produce a workable relationship between the ideal and the
real with maximum possible support and participation on the part of Muslim
peoples.”[86]
The
goal of this work is not to assert that ijma has not played some vital
role in the history of Islam. or that it does not have any validity or
relevance at all. Rather, it is to help drive home the point that Muslims
neither need nor should claim divine sanctity for a concept that simply does
not possess such agreed upon sanctity. Furthermore, as explained here, there is
hardly anything, except concerning a few broad and basic matters, on which
there is ijma or consensus. Thus, Muslims need to be circumspect in
accepting any claim about the validity of having an ijma on
something.
Acknowledging
that cases where ijma al-sahaba
operate are rare and that even the claims of such ijma are contested, if
there is a legitimate ijma al-sahaba on an issue it needs to be accorded
the highest regard. However, the highest regard does not mean that any such
claimed ijma is binding forever. Similarly, ijma of the scholars,
jurists and experts carries special weight in certain respects and must be
accorded as such. As long as ijma is not approached from the perspective
of infallibility, rather that it is approached from the viewpoint of functionality,
all such definitions of ijma can be valid and relevant.
The
scope of this article has been limited to accommodate an exploration of how to
ensure that ijma is relevant and
functional to any contemporary time. While there are serious gaps in the doctrine
of ijma, it is undeniable that there has to be some integrative
mechanisms, tools and institutions to bring functional and working agreement
and harmony among Muslims. In this regard, ijma as a classical Islamic
doctrine may not be tenable, but the concept definitely has relevance as a
method and institution, which Muslims must find ways to make practicable. Thus,
conscientious Muslims need to rededicate themselves to practicing Islam and
living their lives according to a dynamic, problem-solving way, instead of
blindly adhering to rigid dogma or self-indulgent legalism.
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* The author expresses his thanks to Dr. Steve
Connolly from the University of Teesside, UK for useful discussions and his
careful editing of this article.
[1]
Mohammad Hashim Kamali. Principles of Islamic Jurisprudence [Cambridge,
UK: Islamic Texts Society, 2003], pp. 229-230.
[2]
AbdulHamid A. AbuSulayman. The Islamic Theory of International Relations:
New Directions for Islamic Methodology and Thought [Herndon, VA: The
International Institute of Islamic Thought, 1987], pp. 58-59.
[3]
Al-Shafi'i. Al-Shafi'i's Risala: Treatise on the Foundations of
Islamic Jurisprudence [translated by Majid Khadduri; Cambridge, UK:
The Islamic Texts Society, 2nd Edition, 1987], p. 78.
[4]
Ahmad Hasan. The Doctrine of Ijma': A Study of the Juridical Principle of
Consensus [New Delhi, India: Kitab Bhaban, 2003. See Introduction.
[5]
Kamali, op. cit., p. 228.
[6]
Ibid, p. 231.
[7]
Ibid, p. 232.
[8]
Hasan, op. cit., p. 36.
[9]
Ibid, p. 36.
[10]
Ibid, p. 36.
[11]
Ibid, p. 36.
[12]
Hasan, op. cit., pp. 149-150.
[13]
Sharh Zarqani, Vol. 3, p. 167 alislam.co.za.
[14]
“Regarding Tarawih,” http://mac.abc.se/~onesr/h/91.html
[15]
Shahid Hasan Siddiqui. Islamic Banking: Genesis & Rationale, Evaluation
& Review, Prospects & Challenges [Karachi: Royal Book Company,
1994], p. 15. [All emphases are by this author, unless indicated otherwise and
appear as italicised passages.]
[16]
Imam Nawawi. al-Majmu’ Sharh al-Muhadhdhab (3.86), quoted at qa.sunnipath.com.
[18]
referring to Mulla Ali al-Qari at qa.sunnipath.com.
[21]
Fiqh as-Sunnah, muhammad.net .
[22]
See: Radd al-Muhtar ala al-Durr, 5/298-299; eat-halal.com.
[25]
Tarikh Baghdad, Volume 13, p. 383, answering-ansar.org
[29]
Wael Hallaq. "Can
the Shari'a be Restored?" in Yvonne Y. Haddad and Barbara F. Stowasser
(eds.), Islamic Law and the Challenges of Modernity [Walnut Creek:
Altamira Press, 2004, pp. 21-53], p. 31, quoting works of Imam Nawawi;
asterisks are numbered endnotes with annotations.
[30]
Hasan, op. cit., p. 280; quoting al-Ghazali, Al-Mustasfa min Ilm
al-Usul [Cairo: Matba'ah Mustafa Muhammad], Vol. II, p. 141.
[31]
Ibn Taimiya. Fatawa [Cairo: Matba Kurdistan-al-Ilmiya, 1326 A.H], Vol.
I, p. 406., quoted in Sayyid Abul Ala Maududi. Islamic Law and Constitution,
8th ed. [Lahore, Pakistan: Islamic Publications, 1983], p. 92..
[32]
AbuSulayman, op. cit., p. 75; emphasis added.
[33]
Kamali, op. cit., p. 229.
[34]
Al-Marginani. Hedaya, Trans. by Charles Hamilton [Karachi, Pakistan:
Darul Ishaat, 1989]
[35]
For an itemized presentation of these disagreements, see Disagreements
in Hedaya.
[36]
Hasan, op. cit., Chapter IV (The Classical Definition of Ijma),
pp. 72-82.
[37]
Ibid, p. 75.
[38]
Khadduri’s Introduction to al-Shafi'i’s Risala, p. 33.
[39]
Muhammad Muslehuddin. Philosophy of Islamic Law and Orientalists [Kazi
Publications, 1985], p. 146.
[40]
al-Shafi'i, op. cit., p. 37, n109.
[41]
Ibid, pp. 38-39.
[42]
Muslehuddin, op. cit., p. 81.
[43]
Maududi, op. cit., p. 90.
[44]
Ibid, p. 92.
[45]
Taqiuddin al-Nabhani. The
System of Islam [Nizam al-Islam], undated, available online, p.
118.
[46]
One of the issues on which an ijma in general as well as ijma
as-sahaba exists is that the Qur’an as
currently constituted is the same as that revealed to the Prophet, as
preserved in written, standardized form since the time of the third Khalifah
Uthman. However, this view represents an ijma pertaining only to the
preservation of the Qur’an. The status of the Qur’an as the final, direct and
verbatim wahy (divine revelation) from God to the Prophet Muhammad does
not rest on any ijma whatsover. Rather, the Qur’an as divine revelation
stands on its own. This is so because the Qur’an being a direct revelation from
God is regarded as infallible, while no infallibility can be established for
any other source. It is well established that there is no agreed upon evidence
from the Qur’an to establish the infallibility of ijma. However, if the
Qur’an is used to establish the infallibility of ijma and its status as
a foundational source, and then ijma in turn is used to establish the
infallibility of the Qur’an and its status as the preserved revelation from God
this involves circular logic which is untenable. Indeed, even in the case of
the hadith, though an indispensable foundational source, there is no question
that it is not in the same category as the Qur’an. For details, see Mohammad
Omar Farooq. "Islamic
Law and the Use and Abuse of Hadith" [in preparation]
[47]
Indeed, the arbitrariness of such position becomes evident, as one contends
with the issue of who was a companion (sahabi). Like all others who uphold ijma al-sahaba as
the only valid ijma, Nabhani also had to deal with the issue of defining sahabi
(companion). According to Nabhani (and his adherents), only those would qualify
for ijma as-sahaba who were companions of the Prophet for at least one
year or who fought one or more battles.” Evidently, this criteria -
companionship for one year or participation in at least one
battle - is an arbitrary, fallible human construct. A notion that is claimed to
be infallible (i.e., “not subject to error”) and at par with the Qur’an and
Sunnah to be included in the foundational sources can’t be based on such
construct. [See Kitab Al-Wa’a by Ata Abu Rashta, current head of the
organization founded by Nabhani.]
If any such definition is needed, such definitions need to be treated as
working definitions that should not be elevated to the level of dogma.
[48]
Al-Shafi'i, op. cit., p. 350.
[49]
Maududi, op. cit., p. 92.
[50]
Ibid, pp. 90-91.
[51]
Sh. Yusuf Talal DeLorenzo, in Abdulkader Thomas (ed.). Interest in Islamic
Economics: Understanding Riba [Routledge, 2006], p. 7.
[52]
Hasan, op. cit., p. 17.
[53]
Kamali, op. cit., p. 236.
[54]
Ibid, p. 67
[55]
Ibid, p. 232.
[56]
Sunan Ibn Majah, Vol. 5, Kitab al-Fitan, #3950, p. 282.
[57]
Hasan, op. cit., p. 50.
[58]
Ibid, p. 50.
[59]
Hasan, op. cit., p. 51.
[60]
Sunan Ibn Majah, Vol. 5, p. 282; daif, meaning weak.
[61]
Hasan, op. cit., p. 193.
[62]
Ibid, p. 227; Kamali, op.cit., p. 255.
[63]
Farooq, op. cit., "Islamic
Law and the Use and Abuse of Hadith" [in preparation]
[64]
Hasan, op. cit., p. 172.
[65]
Bernard G. Weiss. The Search for God’s Law: Islamic Jurisprudence in the
Writings of Sayf al-Din al-Amidi [Salt Lake City, Utah: University of Utah
Press, 1992], p. 254.
[66]
Hasan, op.cit., p. 180.
[67]
Ibn Taimiya. Fatawa [Cairo: Matba Kurdistan-al-Ilmiya, 1326 A.H], Vol.
I, p. 406, quoted in Maududi, p. 92.
[68]
Al-Shafi'i's Risala, pp. 318, #633-635.
[70]
Wael Hallaq. "On
the Authoritativeness of Sunni Consensus," International Journal of
Middle Eastern Studies 18 (1986), pp. 427-454.
[71]
Mohammad Omar Farooq. "Qiyas
(Analogical Reasoning) and Some Problematic Issues in Islamic Laws,"
[in preparation], citing Raddul Muhtar, vol. 2, p. 351.
[72]
Tariq Ramadan. Western Muslims and The Future of Islam [Oxford
University Press, 2004], p. 45.
[73]
Hasan, op. cit., p. 233.
[74]
Ibid, p. 235.
[75]
Hasan, op. cit., pp. 235-238.
[76]
Kamali, op. cit., pp. 255-257.
[77]
Hasan, op. cit., p. 240.
[78]
Kamali, op. cit., p. 242.
[79]
Hasan, op. cit., pp. 246-248.
[80]
Ibid, p. 248.
[81]
Kamali, op. cit., p. 257.
[82]
Hasan, op. cit., p. 254.
[83]
Ziauddin Sardar. "Rethinking
Islam," Islam for Today, June 2002.
[84]
AbuSulayman, op. cit., p. 76.
[85]
Taufik Adnan Amal. "Observing the Contemporary Model of Ijma’," Liberal
Islam Network [12/4/2004; http://islamlib.com/en/page.php?page=article&id=595];
Muhammad Khalid Masud. “Muslim Jurists' Quest for the Normative Basis of
Sharia,” Inaugural Lecture, ISIM, Netherlands 2001. http://globalwebpost.com/farooqm/study_res/islam/fiqh/masud_norm.pdf
[86]
Abu Sulayman, op. cit., p. 84.
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