8.2. FEASIBILITY OF IJMA’
A number of ulema, including the Mu’tazili leader Abraham al-Nazism and some Shi’i ulema, have held that ijma` in the way defined by the jumhur ulema is not feasible. To ascertain the consensus of the ulema on any matter which is not obvious is just as impossible as their unanimity at any given moment on what they are after and what they eat. It may be possible to ascertain the broad outline of an agreement among the mujtahidun on a particular matter, but to say that their
consensus could be ascertained in such a way- as to impart positive knowledge is not feasible. Since the mujtahidun would normally be located in distant places, cities and continents, access to all of them and obtaining their views is beyond the bounds of practicality. Difficulties are also encountered in distinguishing a mujtahid from a non-mujtahid. Since it is the mujtahidun whose consensus constitutes ijma`, one must be able to identify them with certainty. Apart from the absence of clear criteria concerning the attributes of a mujtahid, there are some among them who have not achieved fame. Even granting that they could be known and numbered, there is still no guarantee to ensure that the mujtahid who gives an opinion will not change it before an ijma` is reached. So long as this is possible, no ijma` can be realised, for it is a condition of ijma that all the mujtahidun be simultaneously in agreement. It is mainly due to these reasons that al-Shafi’i confines the occurrence of ijma to the obligatory duties alone as he considers that on matters other than these, ijma is not a realistic proposition at all.
It is due partly to their concern over the feasibility of ijma` that according to the Zahiris and Imam Ahmad ibn Hanbal ijma’ refers to the consensus of the Companions alone. Imam Malik on the other hand confines ijma` to the people of Madinah, and the Shi’ah Imamiyyah recognise only the agreement of the members of the Prophet’s family (ahl al-bayt). In Shi’i jurisprudence, ijma` is inextricably linked with the Sunnah. For the agreement of the ahl al-bayt (that is, their recognised Imams), automatically becomes an integral part of the Sunnah. `In the Shi’ite view’, as Mutahhari explains, `consensus goes back to the Sunnah of the Prophet […]. Consensus is not genuinely binding in its own right, rather it is binding inasmuch as it is a means of discovering the Sunnah. In support of their argument that ijma is confined to the ahl al-bayt, the Shi’i ulema have referred to the Quran (al-Ahzab 33:33): God wishes to cleanse you, the people of the house (of the Prophet), of impurities. The Shi’i doctrine also relies on the Hadith in which the prophet is reported to have said, I am leaving among you two weighty things, which, if you hold by them, you will not go astray: The book of God , and my family.
The reference in this Hadith, according to its Shi’i interpreters, is to Ali, Fatimah, Hasan and Husayn. The Sunnis have maintained, however, that the ayah in sura al-Ahzab was revealed regarding the wives of the Prophets and that the context in which it was revealed is different. Similarly, while quoting the foregoing Hadith, al-Amidi observes: `doubtlessly the ahl al-bayt enjoy a dignified status, but dignity and descent are not necessarily the criteria of one’s ability to carry out ijtihad.
There is yet another argument to suggest that ijma’ is neither possible nor, in fact, necessary. Since ijma` is founded on ijtihad, the mujtahid must rely on an indication (dalil) in the sources which is either decisive (qat’i) or speculative (zanni). If the former is the case, the community is bound to know of it, for a decisive indication in the nusus could not remain hidden from the entire community. Hence there would be no need for ijma` to substantiate the nass or to make it known to the people. Furthermore, when there is qat’i indication, then that itself is the authority, in which case ijma’ would be redundant. Ijma`, in other words, can add nothing to the authority of a decisive nass. But if the indication in the nass happens to be speculative, then once again there will be no case for ijma’: a speculative indication can only give rise to ikhtilaf, not ijma’.
According to a report, `Abdullah b. Ahmad b. Hanbal quoted his father to have said: It is no more than a lie for any man to claim the existence of ijma`. Whoever claims ijma` is telling a lie. The jumhur ulema, however, maintain that ijma’ is possible and has occurred in the past, adding that those who deny it are only casting doubt on the possibility of something which has occurred. Note for example the ijma’ of the Companions on the exclusion of the son’s son from inheritance, when there is a son; and their ijma’ on the rule that land in the conquered territories may not be distributed to the conquerors; or their ruling that consanguine brothers are counted as full brothers in the absence of the latter. This last rule is based on a Hadith in which the Prophet counted them both as brothers without distinguishing one from the other. The ijma that is recorded on these issues became standard practice during the period of the first four ralphs, who often consulted the companions and announced their collective decision in public.
`Abd al-Wahhab Khallaf is of the view that an ijma` in accordance with its classical definition is not feasible in modern times. Khallaf adds that it is unlikely that ijma` could be effectively utilised if it is left to Muslim individuals and communities without there being a measure of government intervention. But ijma’ could be feasible if it were to be facilitated by the ruling authorities. The government in every Muslim country could, for example, specify certain conditions for attainment to the rank of mujtahid, and make this contingent upon obtaining a recognised certificate. This world enable every government to identify the mujtahidun and to verify their views when the occasion so required When the views of all the mujtahidun throughout the Islamic lands concur upon a ruling concerning an issue, this becomes ijma`, and the ruling so arrived at becomes a binding hukm of the Shari’ah upon all the Muslims of the world.
The question is once again asked whether the classical definition of ijma’ has ever been fulfilled at any period following the demise of the Prophet. Khallaf answers this question in the negative, although some ulema maintain that the ijma ‘ of the Companions did fulfill these requirements. Khallaf observes that anyone who scrutinises events during the period of the companions will note that their ijma’ consisted of the agreement of the learned among them who were present at the time when an issue was deliberated, and the ruling which followed was a collective decision of the shura. When the caliph Abu Bakr could not find the necessary guidance for settling a dispute in the Qur’an or the Sunnah, he would convene the community leaders for consultation, and if they agreed on an opinion, he would act upon it. The community leaders so convened did not include everyone; many were, in fact, on duty in Mecca, Syria, Yemen, etc. There is nothing in the reports to suggest that Abu Bakr postponed the settlement of disputes until a time when all the mujtahidun of the age in different cities reached an agreement. He would instead act on the collective decision of those who were present. The practice of ‘Umar b. al- Khattab corresponded with that of his predecessor, and this is what the fuqaha have referred to as ijma`. This form of ijma’ was only practiced during the period of the Companions, and intermittently under the Umayyads in al-Andalus when in the second Islamic century they set up a council of ulema for consultation in legislative affairs (tashri’ ). References are found, in the works of some ulema of the Andalus, to the effect that so-and-so was the `learned member’ of the council.
With the exception of these periods in the history of Islam, no collective ijma’ is known to have taken place on any medical matter. The mujtahidun were engaged in their juridical activities as individuals, whose views either agreed or disagreed with those of the other mujtahidun. The most that a particular mujtahid was able to say on any particular matter was that `no disagreement is known to exist on the hukm of this or that incident.
by M. H. Kamali.
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