8. IJMA’ OR CONSENSUS OF OPINION
It must be noted at the outset that unlike the Qur’an and Sunnah, ijma does not directly partake in 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. But it seems that the very nature of this high status that is accorded to ijma` has demanded that only an absolute and universal consensus would qualify although absolute consensus on the rational content of ijma’ has often been difficult to obtain. It is only natural and reasonable to accept ijma` as a reality and a valid concept in a relative sense, but factual evidence falls short of establishing the universality of ijma`. The classical definition and the essential requirements of ijma`, as laid down by the ulema of usul, are categorical on the point that nothing less than a universal consensus of the scholars of the Muslim community as a whole can be regarded as conclusive ijma’. There is thus no room whatsoever for disagreement, or ikhtilaf, within the concept of ijma‘. The theory of ijma’ is equally unreceptive to the idea of relativity, or a preponderance of agreement within its ranks.
The notion of a universal ijma ` was probably inspired by the ideal of the political unity of the ummah, and its unity in faith and tawhid, rather than total consensus on juridical matters. As evidence will show, ijma’ on particular issues, especially on matters that are open to ijtihad, is extremely difficult to prove. Thus the gap between the theory and practice of ijma` remains a striking feature of this doctrine. A universal ijma` can only be said to exist, as al-Shafi’i has observed, on the obligatory duties, that is, the five pillars of the faith, and other such matters on which the Qur’an and the Sunnah are unambiguous and decisive. However, the weakness of such an observation becomes evident when one is reminded that ijma` is redundant in the face of a decisive ruling of the Qur’an or the Sunnah.
The Shari’ah has often been considered as `a diversity within unity’. This is true in a general sense, in that there is unity to the essentials and in the broad outlines of the ahkam. But the same cannot be said of the detailed rulings of the jurists. It is admittedly true to say, again in a general sense, that the ikhtilaf of individual jurists, or of the various schools of law, are different manifestations of the same divine will and may therefore be regarded as an essential unity. But to expect universal consensus on ijtihadi matters is totally unrealistic, as many prominent ulema have recognised.
The gap between the theory and practice of ijma` is reflected in the difficulty that many jurists have acknowledged to exist over 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. The only form of ijma’ which has been generally upheld is that of the Companions of the Prophet, which is partly due to their special status and not always due to their participation and consensus. With these introductory remarks, then, we may begin to examine the meaning and definition of ijma’, and then proceed to discuss some of the issues we have raised.
Ijma` is the verbal noun of the Arabic word ajma’a, which has two meanings: to determine, and to agree upon something. To give an example of the former, the expression ajma `a fulan `ala kadha, means `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.
Ijma` is defined as the unanimous agreement of the mujtahidun, of the Muslim community of any period following the demise of the Prophet Muhammad on any matter. In this definition, the reference to the mujtahidun precludes the agreement of laymen from the purview of ijma`. Similarly, by reference to the mujtahidun of any period, it means a period in which there exist a number of mujtahidun at the time an incident occurs. Hence it would be of no account if a mujtahid or a number of mujtahidun become available only after the occurrence of an incident The reference in the definition to any matter implies that ijma` applies to all juridical (shar’i), intellectual (aqli), customary (urfi,) and linguistic (lughawi) matters. Furthermore, shar’i, in this context is used in contradistinction to hissi, that is, matters which are perceptible to the senses and fall beyond the scope of ijma`. Some ulema have confined ijma’ to religious, and others to shar’i matters, but the majority of ulema do not restrict ijma` to either. Although the majority of jurists consider dogmatics (itiqadiyat) to fall within the ambit of ijma`, some have expressed the view that ijma` may not be invoked in support of such subjects as the existence of God or the truth of the prophet hood of Muhammad. The reason is that such beliefs precede ijma` itself. Ijma derives its validity from the nusus on the infallibility (`ismah) of the ummah. These nusus, in turn, take for granted the existence of God and the Prophethood of Muhammad. Now if one attempts to cite ijma` in support of these dogmas, this would amount to circumlocution. To illustrate the point further, it may be said that the Qur’an cannot be proved by the Sunnah, because the Qur’an precedes the Sunnah. Matters of a practical type witch do not partake in the nature of tashri` (legislation) do not constitute the proper subject of ijma`. For example, the agreement of the Companions to send out troops to Syria or to Persia, or their agreement on setting up certain government departments, etc., did not constitute ijma`. For these were practical decisions which were valid in connection with particular circumstances and did not bind the succeeding generations of Muslims. Ijma’ on a shar`i ruling, on the other hand, has a quality of permanence and its validity is not confined by a time limit.
Although the theory refuses to impose any restriction on the subject-matter of ijma`, in actual terms the application of ijma` is bound to be subject to some reservations. For example, ijma‘ must be of a somewhat limited application in regard to rational and linguistic matters. To say that lying is evil, or that `hand’ also means `power’, need not be supported by ijma’. In actual terms, ijma’ has always been selective in determining its own subject-matter. It was perhaps in view of the dynamic nature of ijma` and its infallibility that the ulema were persuaded not to impose any advance reservations on its scope.
It is clear from its definition that ijma’ can only occur after the demise of the Prophet. For during his lifetime, the Prophet alone was the highest authority on Shari’ah, hence the agreement or disagreement of others did not affect the overriding authority of the Prophet. In all probability, ijma occurred for the first time among the Companions in the city of Madinah. Following the demise of the Prophet, the Companions used to consult each other over the problems they encountered, and their collective agreement was accepted by the community. After the Companions, this leadership role passed on to the next generation, the Successors (tabi’un) and then to the second generation of Successors. When these latter differed on a point, they naturally referred to the views and practices of the Companions and the Successors. In this way, a fertile ground was created for the development of the theory of ijma’ The essence of ijma lies in the natural growth of ideas. It begins with the personal ijtihad of individual jurists and culminates in the universal acceptance of a particular opinion over a period of time. Differences of opinion are tolerated until a consensus emerges, and in the process there is no room for compulsion or the imposition of ideas upon the community.
Ijma’ plays a crucial role in the development of Shari’ah. The existing body of fiqh is the product of a long process of ijtihad and ijma`. Since ijma reflects the natural evolution and acceptance of ideas in the life of the community, the basic notion of ijma’ can never be expected to discontinue. The idea that ijma` came to a halt after the first three generations following the advent of Islam seems to be a by- product of the phenomenon known as the closure of the gate of ijtihad. Since ijma originates in ijtihad, with the closure of the gate of ijtihad, it was expected that ijma’ also came to a close. This is, however, no more than a superficial equation, as in all probability ijma’ continued to play a role in consolidating and unifying the law after the supposed termination of ijtihad.
Ijma’ ensures the correct interpretation of the Qur’an, the faithful understanding and transmission of the Sunnah, and the legitimate use of ijtihad. The question as to whether the law, as contained in the divine sources, has been properly interpreted is always open to a measure of uncertainty and doubt, especially in regard to the deduction of new rules by way of analogy and ijtihad. 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. This is obvious enough in the sense that whatever is accepted by the entire Muslim community as true and correct must be accepted as such. However, ijma` is also an instrument of tolerance and of the evolution of ideas in such directions as may reflect the vision of the scholars to the light of the fresh educational and cultural achievements for the community. According to one observer, `clearly this principle (i.e. ijma`) provides Islam with a potential for freedom of movement and a capacity for evolution. It furnishes a desirable corrective against the dead letter of personal authority. It has proved itself, at least in the past, an outstanding factor in the adaptability of islam.
Ijma enhances the authority of rules which are of speculative origin. Speculative rules do not carry a binding force, but once an ijma `is held in their favour, they become definite and binding. Instances can be cited, for example, where the Companions have, by their ijma’, upheld the ruling of a solitary Hadith. In such cases, the ruling in question is elevated into a binding rule of law. For example, the prohibition concerning unlawful conjunction, that is, simultaneous marriage to the close relatives of one’s wife, is a definitive ruling which is based on ijma `, despite the fact that the basis of this ijma` is a solitary Hadith – namely the Hadith that prohibits simultaneous marriage to the maternal or paternal aunt of one’s wife. Similarly, the grandmother is entitled to a share in inheritance, and this is a qat’i ruling of ijma` which is based on a solitary Hadith. The Hadith in question is reported by al-Mughirah b. Shu’bah to the effect that the Prophet assigned to the grandmother the portion of one-sixth. Ijma` has also played a role in regard to ahadith that were not equally known to all the mujtahidun especially driving the period preceding the collection and compilation of Hadith. It was through ijma` that some scholars were informed of the existence of certain ahadith.
And lastly, ijma` represents 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. It then becomes common practice to quote the law without a reference to the relevant sources. It is partly due to the significance of ijma` that the incentive to quote authority tends to weaken. This is according to Shah Wali Allah, one of the reasons which induced the jurists to recognize ijma` as the third source of the Shariah.
Essential Requirements (Arkan) of Ijma`
Whenever an issue arises and attracts the attention of the mujtahidun of the Muslim community at the time of its incidence, and they reach a unanimous agreement on its ruling, it is implied that the ruling so agreed upon is the correct and authoritative ruling of the Shari’ah, provided that the following conditions are fulfilled:
1. That there are a number of mujtahidun available at the time when the issue is encountered. For consensus can never exist unless there is a plurality of concurring opinion. Should there be a situation where a plurality of mujtahidun could not be obtained, or when there is only a single mujtahid in the community, no ijma’ could be expected to materialise.
2. According to the majority of ulema, unanimity is a prerequisite of ijma`. All the mujtahidun, regardless of their locality, race, colour and school or following, must reach a consensus on a juridical opinion at the time an issue arises. The presence of a dissenting view, even on the part of a small minority, precludes the possibility of ijma`. If, for example, the mujtahidun of Mecca and Madinah, or those of Iraq, or the mujtahidun of the family of the Prophet, or the Sunni ulema without the agreement of their Shi’i counterparts agree upon a ruling, no ijma’ will materialise.
3. The majority of ulema maintain that lay opinion is not taken into account: in every field of learning, only the opinion of the learned is relevant to ijma`. Al-Amidi, however, prefers the minority view, attributed to Abu Bakr al-Baqillani and others, to the effect that ijma’ includes the agreement of both the laymen and the mujtahidun, the reason being that ‘ismah, which is the doctrinal basis of ijma `, is a grace of God bestowed on the whole of the community. It would therefore be improper to turn the property of the entire community into a privilege of the mujtahidun. The majority view is, however, based on the analysis that the mujtahidun, in their capacity as the constituents of ijma`, merely represent the community, and therefore no change is proposed in the original locus of ‘ismah.
4. The agreement of the mujtahidun must be demonstrated by their expressed opinion on a particular issue. This may be verbal or in writing, such as by giving a fatwa in either of these forms, or it may be actual, when, for example, a judge adjudicates the issue in question; or it may be that every mujtahid expresses an opinion, and after gathering their views, they are found to be in agreement. Similarly the mujtahidun may give their views collectively when, for example, the mujtahidun of the Muslim world assemble at the time an issue is encountered and reach a consensus over its ruling.
5. As a corollary of the second condition above, ijma’ consists of the agreement of all the mujtahidun, and not a mere majority among them. For so long as a dissenting opinion exists, there is the possibility that one side is in error, and no ijma’ can be envisaged in that situation, for ijma’ is a decisive proof, which must be founded on certainty. However, according to Ibn Jarir al-Tabari, Abu Bakr al-Razi, one of the two views of Ahmad Ibn Hanbal and Shah Wali Allah, ijma’ may be concluded by a majority opinion. But al-Asmidi prefers the majority view on this point, which requires the participation of all mujtahidun.
In regard to the rules of fiqh, it is the ijma’ of the fuqaha alone which is taken into account. The question naturally arises whether fuqaha belonging to certain factions like the Khawarij, the Shi’ah, or those who might have been charged with heresy and bid’ah are qualified to participate in ijma`. According to the majority view, if a faqih is known to have actively invited the people to bid’ah, he is excluded from ijma’ ; otherwise he is included in the ranks of ahl al-juma’. The Hanifis preclude a transgressor (fasiq) and one who does not act upon his doctrine from being among the ahl al ijma`, whereas the Shafi’is and some Malikis maintain that a mere transgression is no disqualification. Some fuqaha have held that ijma` is concluded only with the disappearance of the generation (inqirad al-‘asr), that is, when the mujtahidun who took part in it have all passed away. For if any of them is known to be alive, there would still be a possibility that he may change his view, in which case the ijma` would collapse. A corollary of this rule is that ijma` is retrospective, in that it only binds succeeding generations but not its own constituents.
The majority of jurists, however, maintain that this is not a condition of ijma` and that ijma` not only binds the next generation but also its own participants, as it would only be reasonable to expect that if ijma` did not bind its participants, it should not bind anyone else either. With regard to the tacit ijma (fort which see below), too, some jurists have held that it is concluded only after the death of its participants, so that it can be established that none of them have subsequently expressed an opinion. For when they break their silence they will no longer be regarded as silent participants, and may even turn a tacit ijma` into an explicit one.
The majority of ulema, nevertheless, refuse to place any importance on the `disappearance of the generation’, for in view of the overlapping of generations (tadakhul al-a’sar), it is impossible to distinguish the end of one generation from the beginning of the next. Thus the period of the Companions cannot be clearly distinguished from that of the Successors, nor can any other period be so distinguished from its preceding or succeeding generations. However , al-Ghazali, to all intents and purposes, has resolved this question by stating that ‘for the formation of ijma’ it is enough that agreement should have taken place, even if only for an instant.
When ijma fulfills the foregoing requirements, it becomes binding (wajib) on everyone. Consequently, the mujtahidun of a subsequent age are no longer at liberty to exercise fresh ijtihad over the same issue. For once it is concluded, ijma` is not open to amendment or abrogation (naskh). The rules of naskh are not relevant to ijma` in the sense that ijma` can neither repeal nor be repealed. This is the majority view, although some jurists have stated that the constituents of ijma` themselves are entitled to repeal their own ijma’ and to enact another one in its place. But once an ijmais finalised, especially when all of its constituents have passed away, no further ijma’ may be concluded on the same subject. Should there be a second ijma on the same point, it will be of no account.
by M. H. Kamali.
Comments
John Doe
23/3/2019Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.
John Doe
23/3/2019Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.
John Doe
23/3/2019Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.