The Doctrine of Ijma Is there a consensus

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?	No ijma on this (Hasan, pp. 58-60; Hallaq, p. 442[70]; Kamali, p. 243]
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: