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).
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.
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
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