8.3. TYPES OF IJMA
From the viewpoint of the manner of its occurrence, ijma` is divided into two types:
a. Explicit ijma` (al-ijma’ al-sarih) in which every mujtahid expresses his opinion either verbally or by an action; and
b.Tacit ijma`(al-ijma `al-sukuti) whereby some of the mujtahidun of a particular age give an expressed opinion concerning an incident while the rest remain silent.
According to the jumhur ulema, explicit ijma’ is definitive and binding. Tacit ijma’ is a presumptive ijma’ which only creates a probability (zann) but does not preclude the possibility of fresh ijtihad on the same issue. Since tacit ijma` does not imply the definite agreement of all its participants, the ulema have differed over its authority as a proof. The majority of ulema, including al-Shafi’i, have held that it is not a proof and that it does not amount to more than the view of some individual mujtahidun. But the Hanafis have considered tacit ijma` to be a proof provided it is established that the mujtahid who has remained silent had known of the opinion of other mujtahidun but then, having had ample time to investigate and to express an opinion, still chose to remain silent. If it is not known that the silence was due to fear or taqiyyah (hiding one’s true opinion), or wariness of inviting disfavour and ridicule, then the silence of a mujtahid on an occasion where he ought to express an opinion when there was nothing to stop him from doing so him from doing so would be considered tantamount to agreeing with the existing opinion.
The proponents of tacit ijma’ have further pointed out that explicit agreement or open speech by all the mujtahidun concerning an issue is neither customary nor possible. In every age, it is the usual practice that the leading ulema give an opinion which is often accepted by others. Suppose that the entire ummah gathered in one place and shouted all at once saying that, ‘we agree on such-and-such’. Even if this were possible, it would still not impart positive knowledge. For some of them might have remained silent due to fear, uncertainty, or taqiyyah.
Further, the Hanafis draw a distinction between the `concession’ (rukhsah) and ‘strict rule’ (azimah), and consider tacit ijma’ to be valid only with regard to the former. In order to establish a strict role, ijma` must be definitely stated or expressed by an act. The Hanafis are alone in validating tacit ijma`. The Zahiris refuse it altogether, while some Shafi’is like al-Juwayni, al-Ghazali and al-Amidi allow a with certain reservations. ‘is ijma`, al- Ghazali tells us, ‘provided that the tacit agreement is accompanied by indications of approval on the part of those who are silent.
The majority opinion on this matter is considered to be preferable. The silence of a mujtahid could be due to a variety of factors, and it would be arbitrary to lump them all together and say that silence definitely indicates consent. But despite the controversy it has aroused, tacit ijma’ is by no means an exceptional case. On the contrary, it is suggested that most of what is known by the name of ijma’ falls under this category. The next topic that needs to be taken up in this context is the ‘Madinese consensus’, or ijma’ ahl al-Madinah.
According to the Maliki ulema, since Madinah was the centre of Islamic teaching, the ‘abode of hijrah’ (dar al-hijrah) and the place where most of the Companions resided, the consensus of its people is bound to command high authority. Although the majority of ulema have held that the Madinese ijma`is not a proof on its own, Imam Malik held that it is. There is some disagreement among the disciples of Malik as to the interpretation of the views of their Imam. Some of these disciples have observed that Imam Malik had only meant that the ijma` of the people of Madinah is a proof ‘from the viewpoint of narration and factual reporting’ (min jihah al-naql wa’l-riwayah) as they were closest to the sources of the Shari’ah. Other Maliki jurists have held that Malik only meant the Madinese ijma’ to be preferable but not exclusive. There are still others who say that Malik had in mind the ijma’ of the Companions alone. The proponents of the Madinese ijma` sought to substantiate their views with ahadith which include the following: ‘Madinah is sacred, and throws out its dross as fire casts out the dross of metal,’ and ‘Islam will cling to Madinah as a serpent clings to its hole.’
The majority of jurists, however, maintain that these ahadith merely speak of the dignity of Madinah and its people. Even if the ahadith are taken to rule out the presence of impurity in Madinah, they do not mean that the rest of the ummah is impure, and even less that the Madinese ijma’ alone is authoritative. Had the sacred character of a place been a valid criterion, then one might say that the consensus of the people of Mecca would command even greater authority, as Mecca is the most virtuous of cities (afdal al-bilad) according to the mass of the Quran. Furthermore, knowledge and competence in ijtihad are not confined to any particular place. This is the purport of the Hadith in which the Prophet said: ‘My Companions are like stars. Whomsoever of them that you follow will guide you to the right path.’
This Hadith pays no attention whatsoever to the place where a Companion might have resided To this analysis, Ibn Hazm adds the point that there were, as we learn from the Qur’an, profligates and transgressors (fussaq wa’l-munafiqun) in Madinah just like other cities. The Companions were knowledgeable in the teachings of the Prophet wherever they were, within or outside Madinah, and staying in Madinah by itself did not necessarily enhance their standing in respect of knowledge, or the ability to carry out ijtihad.
by M. H. Kamali.
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