The Development of Ijnz& The Practices of the Khulafi ' a2 Rdzidiirt and the Views of the Classical Fuqahi ' Muhummud Z Faruqi In the beginning, ijmii ' (consensus) was more a pragmatic necessity than an explicit SharI'ah principle. It was first applied to public policy considerations and was used to settle some crucial questions that had arisen (we will discuss the issue of k h i h w separately, where we can see haw the Companions attempted to settle this issue). The event of the Thaqifah of Bani Sii'idah was a great test for the ummah's social order and alerted the leaders to potential future crises. The Companions therefore gave immediate attention to the succession issue, and sincere people realized that the ummah needed a sociopolitical doctrine that would support its desired sociopolitical development and keep it united. Among the khulafa 'al riishidiin, particularly Abii Bakr and ' Umar, great emphasis was placed on the principle of shiirii, which was, in fact, a means to realize zjmii '. The development of ijmii ' was an opportune and proper approach to preserve the ummah's unity and integrity. As the Companions were greatly concerned about the establishment of the khihfuh by means of zjmii ', 'Umar rejected all attempts to use other methods.' Although thefuqahii '(jurists) refer to the Qur'anic iiyiit and the u&idith as a normative basis for ijmii ', precedents are found in the practice the wlulafii ' al riishidiin and the Companions, who made agreed-upon decisions in many social and religious matters. The jurists are unanimous in agreeing that the Companions' zjmii ' is a complete and definite source of law, and some recognize it to the exclusion of all other source^.^ The classical jurist al KhaILb al Baghdiidi Muhammad Y. Faruqi is an associate prokssor in the Kulliyyah of Islamic Revealed Knowledge and Human Services, International Islamic University, Selangor, Malaysia. "Abd al Mid& ibn Hishm, a1 simh al Nabawiyah, ed. Mu?@fi al Saqi (Cairo: Must@ al Bibi al Halabi, 1375/1955), vol. 2, 658. zAbii Bakr m a d ibn 'Mi al KhaQb al Baghdidi, a1 Faqih wa a1 Mutafaqqih, ed. I. al An*-(Beirut: Dir Ihyi'al Sunnah al Nabawiyah, 1395/1975), vol. 1,169; Abii Himid al G M i , a1 Mustmfifi 'Ilm a1 UsUl (Cairo: al Matba'ah al AmKyah, 1322), vol. I, 18j; Sayf al Din Mi ibn M u b a d al ' h i d i , a1 W m j i UqUl alA&im (Cairo: Matpa'ah al Ma'aTrif, l332n914) vol. I, 336. 174 The American Journal of Islamic Social Sciences 9:2 reports Abii Hiitim al Riizi's opinion that knowledge is that which comes from Allah through His revealed Book (the Qur'an) , what is proved to be authentic from the Prophet, and what has been agreed upon by the companion^.^ All of t hehuh4 'give particular attention to the agreement of the Companions, while others give consideration to the agreement of the khulafa 'd riishidiin . Although the agreement of the latter group has not been viewed as i j f i ' in the technical sense, somefuqahi ', such as Ibn I;Ia~~bal,~ do regard it as hujjuh (authority). Discussions concerning ijmii' can be traced back to the time of the khubfii 'd riishidiin. For example, a hadith reported by Mahriin ibn Maymiin states that Abii Bakr, when he could not find an appropriate ruhg fmmthe Qur'an and the Sunnah, summoned the leaders and other prominent people to ask their advice. In other words, he attempted to reach a collective decision. He then enforced whatever solution they agreed upon. Thefuquhii 'refer to the agreed- upon decisions of the Companions to support their legal arguments and also to establish the principle of consensus. The first acutal example of i j f i ' is the selection of Abii Bakr as the first khaZi..h,6 for the Companions tried to reach this decision by means of a unanimous consensus. Hourani, while discussing i j f i ', says: There is no reason to think that he (the Messenger) discouraged his Companions from making agreed decisions during his absence or after his death. Thus it was normal that the first caliph was elected by some kind of informal consensus, and this long-remembered event set the tone for many later proceedings. Without the Prophet, the Muslims naturally reverted to a sensible procedure of their ancestors, only changing the source of public authority from the tribe to the religious community or Ummah. Abii Bakr was elected by an absolute majority, which was regarded as essential by those jurists who view consensus as a proper basis for determining who will lead the ummah. One man who contested this selection was Sa'd ibn 3Al Kha@ al Baghdidi, a1 Faqih, vol. I, 171. ' Abd All& ibn M+ammad ibn Qudhah, h & t a1 Niizir (Cairo: al Mat.ba'ah al Sala- 5MulpmmadAbdAll&alD~-, SunanaID6rirni(Beirut: DiiralKutubal'Ilmiyah, n.d.), 6Abii Ya'G Mu!mmmad ibn al Hasan ibnal Fami', a1 Mu 'tMtadJi U@lal DTn, ed. W. Zay& Had& (Beirut: D5ral Mashriq, lb74), 225; al '&nidi, almrn, vol. 1, J79-80; Ibn Qudhah, Zhv&al N@r, 74; Ibn Qud&nah, a1 Mughni (Cairo: & al Man&, l368), vol. 2,720-1. 'G. F. Hourani, ''"he Basis of Authority of Consensus in Sunnite Islam," Sfudiu Zslarnicu 21 (1965): 16. fiyah, l3%), 73. vol. 1, 58. Faruqi: The Development of Zjm-‘ 175 ‘Ubiidah,8 the widely esteemed leader of the Khazraj tribe who was presenting himself for the same office. Despite the regard in which he was held (i.e. , the Prophet used to consult him on important matters and even appointed him mqib [leader of a group] at the second gathering of a1 ‘Aqabah),g his opposition did not affect Abii Bakr’s status as having been elected khatifuh by means of consensus. Other early examples of ijmii ‘, mentioned by al ‘Amidi, were the decision madebytheCompanionstoburytheProphetin‘~’ishah’smm10andAbQBakr’s war against those Arab tribes who refused to pay zakah after the Prophet’s death. The decision to launch this campaign was reached after a process of discussion and consultation overcame the initial disagreements and resulted in complete agreement .1’ This event, in the opinion of al ‘ h i d i , set an example and a model decision which provided a precedent for ijmij ‘, for there was discussion and reasoning among the Companions and, ultimately, total agreement as regards the course to be taken.’2 It is also stated by al ‘Ayni that consensus was reached on the issue, and that AbQ Bakr’s action against the tribes was the result of a unanimous decision?-3 ‘Umar ibn al Khawb assumed the leadership of the ummah with the agreement of the Companions. Ibn al Farrii’ cites ijmii‘ to prove the authority of ‘Umar’s 1eader~hip.l~ ‘Umar made frequent use of this practice by actively seeking the Companions’ advice before making a decision. Some of the resulting decisions were regarded by the jurists as ijmij ‘ by majority, such as what to do with suwiid (public) land:5 a decision opposed by BilA ibn Flab% and therefore a true ijmii ‘ according to a1 Tabari and others, and the banning of commercial transactions of either sawiid land or those lands conquered by force. Ibn Q u W says that there was consensus among the Companions on this second issue and that there is no way to achieve a stronger zjmii ‘ than this one?-6 Al Awz5‘imentions that it was the consensus of the Companions, who agreed with ‘Umar, that this 8M@mmad ibn Jarir al Tabm-, Tm-kh a1 Rusul na a1 Mulrik, ed. Abii al Fad I b r W (Cairo: 91bn Hishim, a1 Sinzh, vol. 1,443-4. I0Al ‘ k i d i , a1 @&m, vol. 1, 3%. llMfiammad ibn IsG‘il al Bukhiri, a1 JCmi ‘ a1 %ih (Cairo: Dir wa MaGbi‘ al Sha‘b, n.d.), vol. 1, part 2, 131; Muhammad ibn +ad al Ap-, ‘Umdat a1 QCri’ (Beirut: Dir @yi’ al Turith al ‘Arqbi, n.d.), vol. 8,243-6; ‘Miibn Muhammad al M i d i , Adab a1 Q+, ed. M. H. al Sarhk (Baghdad: Matba‘at al Irshid, 1391/1971), vol. 1,454-5. Dir al Ma‘irif, 1961), vol. 3, 222-3. 12M ‘Amidi, a1 M m , vol. 1,380; Ibn Q u d a , Raw@ al NGTir, 74. 13M ‘Ayni, ‘Umdah, vol. 8, 245. 141bn al Farri’ , a1 Mu ‘tamad, 228. lsYi‘qiib ibn Ibrlihim Abu YUsuf, Kitiib a1 KharCj (Cairo: Maktabah al Salafiyah, 1!J76), 26-7; al Qisim ibn Sallim Abii ‘ Ubayd, Kitcb a1 AmwGl, ed. Khalil Harris (Cairo: Maktabah Kulliyat al Azhm-yah, 1395/1975), 61-2. 161bn Qudiimah, a1 Mughni, vol. 2,?20-1. 176 The American Journal of Islamic Sochl Sciences 9:2 land shouldbe kept cultivatedby the ah1 al dhimmah (non-Muslim) peasants.” During the reign of ‘Umar, there were several incidents of ijmii ‘performed by the Companions on purely fighi matters. These include: a) amending, on ‘Umar’s initiative, the punishment for intoxication to eighty lashes. Ibn Hajar and al Ayni clearly state that this was a result of ijmii ‘18; b) the payment of full dowry once the husband has been given complete privacy with his wife. This decision, according Ibn Q u M , was the ijm5 ‘of the Companions as well as of the khulafa ’ a1 riishidiin19; c) the suspension of the lluc ’alh&t a1 quliib (reconcilihg the hearts) share. This was ‘Umar’s judgment and, according to al Qumbi, the Companions accepted itzo; and d) amending the rule of blood money. The &win system, introduced by ‘Umar to take into account changing social requirements and conditions, was made in the presence of the Companions and was not challenged. Thus, according to al Sarakhsi, it was ijmii fzl Perhaps this incident gave the jurists the idea of om5 ‘sukiiti (silent @ii 9, because there is no mention of any oral dissent. The Companions also employed consensus on more serious matters, such as: a) ‘Umar’s letter to QZcji Shurayh instructing him to make use of ijm5 ‘(the actual term used) if he could not find a rulhg in the Qur‘an or the S~nnah;~~ b) the election of ‘Uthmh ibn ‘Affan as the third wuZE$3;z3 c) ‘ UthmWs decision to compile the Qur’an in the Qumyshi dialectz4; and d) the election of ‘Ni ibn Abii Tdib as the fourth htifahZ5 (in a striCtJiqhi sense, however, this is not an example of ijm5 9. There is one hadith, narrated on ‘Ali’s authority, that the Prophet said that judgment should be made according to the Qur‘an and the ‘%id. l*Ibn Hajar al ‘Asqalb-, Rzth a1 Bin (Cairo: Mustafi al Babi al +abi, l378/1959), vol. 191bn Qudimah, a1 Mughni, vol. 7,451; Raw@ a1 Nqir, 74. 2oMu@mmad ibn mad al Qumbi, ul Jiimi‘ li A&im a1 Q u r h (Beiit: Dslr al Kit& al ‘Arabi, l387/1%7), vol. 8, 181; Mulpmmad ibn al ‘Imidi AbG al Sa‘ Gd, Zrshdal2ql a1 salsm, ed. Abd al Qdir AIpad ‘&(Riyadh: Maktabat al Riy3 al Hadithah, 339l/l971), vol. 2 ,567; AbiBakrAlpmdibn‘A1Ial Jq~,~alQur’in(Constaathople: Ma@‘atalAw@, 2 1 M ~ ibn Alpnad al Sarakhsi, alMab@@irut: Dslral Ma‘&, n.d.), vol. 27,126. 12M- ibn Khalafw-, U r u l Qu&u(Beirut: ‘ h a l Kutub, n.d.), vol. 2,189-90; Ibn Abd al Barr, J h i ’&lyiin al ‘Zlm (Beirut: D k al Kutub a l ‘h-yah, l398/1978), vol. 2,56; IbnQayyimalJrrwziyah,Z‘~alMuwtIqi‘in,ed. M. M. ‘AwalHm-d(Beirut: DkalJa, l m ) , vol. 1,61-2; al Muttaqi al Hindi, Kanz a1 ‘Vinmiil (Hyderabad: Di’irat al Ma‘irif al Nu‘man- iyah, l374/1954), vol. 5,481. 15,67-75; al AyN, Umdah, V O ~ . 23,266. l335), vol. 3, 123. 131bn al Fami’, a1 Mu ‘tamad, 229. 14Al B*-, alJ& ‘ ulwib, vol. 2, part6 2256; Badr al Din Mu!ummad ibn Abd All& al Zarkashi, a l B u r h f i ‘ U i h a1 Qur’iin, ed. M. AbG al Facjl Ib+ (Cairo: ‘Isi al Bibi al Halabi, l391/wT), vol. 1,2334; Ibn Hajar, Rzth a1 BGri, vol. 17, lO5-6 151bn a l Fami’, al Mu‘ramad, 231-2. F q i : The Development of Ijm-‘ 177 Sunnah of the Prophet and, if there is no ruling therein, then according to what may be agreed by the people of good conduct.z6 The ‘ulama frequently rely on the consensus of the Companions when it comes to matters of fiqh. Al Shiifi‘i cites the ijmi ‘of the Companions when arguing that there should be only one khatfuh at a time, because at the time of Abii Bakr’s election the idea of having two was rejected. ‘Umar, having been nominated by Abii Bakr as his successor, used shiirii to determine the new khalsfuh. Thus it was the agreed practice of the companion^.^^ Both al Sarakhsi and Ibn Qudiimah refer to the ijmii ‘ of the Companions. Al Sarakhsi, for example, discusses the issue of apostasy by a wife and her husband which, a m d q to qiyiis, should break the marriage bond. But, because the ijmii ‘ of the Companions said that the marriage bond would remain intact inthi~case,~the&&’acceptedit. IbnQudiitnahusuallyreferstotheconsensus of the Companions by saying: “Our argument is the ijmi ‘ of the Companions.” Similarly the consensus of the Companions is a pivotal principle of the fiqh of al Awzl‘i. Ibn Qudsimah refers to their consensus on many legal issues as an argument.29 Al Awzl‘i considers ijmi‘ as valid if he has not heard any contradictory view on the issue from other corn pan ion^.^^ Al ‘&nidimentiom almost adozen issues on which, accodmg to him, ijmi ‘ was attained by the Companions. He discusses their agreement on the election of Abii Bakr; Abii Bakr’s campaign against the tribes who refused to pay zakah; burying the Prophet in the same mom where he died; the appointment of Khdid ibn al Walid as commander of the army; the punishment for drinking; the prohibition of pork; the issue that sesame oil or liquid syrup is impure (najs) if a mouse fell into it and died (this is analogous to a similar consensus regarding impure butter); the compensation h r hunting during kjj; the estimation for the penalty for injuries (in which qz& is not possible); the estimation for the expenditum (nafaqah) of close relatives; and that the ‘adiilah of amirs and judges is a matter ofijtihad (thm is no calculated measurement or rules for these matters - the uhl ul k l l wu ul bqd may know or decide by way of ijtihad).31 It is not important here whether all of these issues were resolved by gmii ‘ in the real sense of the term or not. Their oft-repeated references to the agreed- ibn ‘Mi, Musnad Zayd ibn Ali (Beirut: Dir al Kutub al ‘Ilnniyah, M3/1983), 261. ”M~@ammad ibn Ib-s al Shifi‘i, a1 RsiLWz, ed. Sayyid -- (Cairo: Mytgfi al Babi al Halabi, l388/1%9), 182. Sarakhsi, a1 Mab& vol. 5,49. 291bn Quditnah, al Mughni, vol. 2,99-100,720-1. 301bid., vol. 7, 357. 31M ‘ h d i , a1 l&im, wl. 1,380-96. 9 & +y ClGj j k lih p* &a, + U l & S J & % J d l i Jji + QL9I .ir (jj, . c&l iJI J*, CjLj Jj &i Y, .ceI.+yClq j k Cj- &&I\, + U I & iJ& Jji + QLYI A 4, :Wd &I 4, (TAP JLUI LA~J) 178 The American Journal of Islamic Social Sciences 9:2 upon practices of the Companions indicate that the jurists not only gave due consideration to the views and practices of the Companions, but that they also based their legal views on the precedents set by them. The procedure of zjmi ‘ at the time of the Companions was simple; the Muhijiriin and the An@ would gather in the mosque, discuss the issue in question, and express their views. The most sound and plausible opinion was accepted (either verbally or silently) and then implemented by thekhallfa. Such a ruling would thenbecome the accepted norm in the absence of any dissent or open disagreement. Discussions and Views of the Classical Jurists Consensus is one of the most important secondary (dependent) sources of fiqh. A majority of jurists believe that it is a Eujjuh shar ‘Tyuh (decisive legal argument). The jurists of the four esablished schools of fiqh discuss it as the third source after the Qur’an and the Sunnah, which are regarded as the independent or original sources of the Shari‘ah. The idea of ijmii ‘ , as defined by the classical jurists, was not used during the time of the Prophet (when revelation and his words solved the issues), but rather developed during the first and second hijricenturies. There is no mention of it in the hadith of M u ‘ a ibn Jabal, which mentions ijtihad as the third source of reaching a ruling.32 Al ‘.&midi shares the view that ijmi ‘ was not hujjuh (authority) at the time of the P ~ o p h e t . ~ ~ The concept of ijmii ‘ underwent a gradual evolution, and the jurists of the second hzjri century developed it as a legal doctrine. Perhaps the first jurist to discuss it as a legal principle was Abii Hm-fah, who might have discussed it as a source of fiqh with his students or in his book Kitlib al Ra ’y. 34 We assume this because Mu&unmad ibn al Hasan al Shaybh- (d. 189 AH), who was a student of Abii Ha-fah, discussed it as a source of fiqh and made an attempt to find an intellectual basis for it. In his version of Milik’saZMuw~&i ; al Shaybw-justifies zjmi ‘ based on the following prophetic hadith: “Whatever the Muslims consider good is good in the sight of Allah, and whatever the Muslims regard as bad is bad in the eyes of Allah.” He also states that the Muslims have agreed on it and have approved it.35 It is possible that he learned this from Abii Hanifah. 32Sulaymh ibn Ash‘ath Abii Di%viid, Sunan Abi Dc%vd, ed. ‘Izzat ‘Ubayd (Him!, Syria: M. ‘Ali al Sayyid, l388/1%9), vol. 4, 18-9 (# 3592); Mulymad ibn ‘Isi al TirmidhI, Sunan a1 linnidhI @ms, Syria: D& al Da‘wah, l385/1965), vol. 5, 8 (#l327). 33Al ‘Amidi, a1 I@%n, vol. 1, 300. ”Mdgmmad Hm-ddzih, Khutb&-e-&JliiwalppIlr (Islamabad: Islamic Research Institute, 3% Schacht, The Origins OfMUhmnmadM Jurispnrdence (London: Oxford University Press, 1988), 127. 1982). 86; G. F. Hourani, “The Authority of Consensus,” Studia Islamica 21 (1964): 19. Faruqi: The Development of Zjm? 179 Unfortunately, the book written by Abii Yiisuf and a1 Shaybini on up21 has been lost. Another book on usiil, written by Abii a1 Husayn a1 Basri, has now been published. In this, he mentions that a1 Shaybiini said that there are four principles of fiqh: the Qur'an, the Sunnah, ijmii ', and q i y i i ~ . ~ ~ This reference makes it clear that ijrnii ' was accepted as a principle and a source of fiqh by the time of a1 Shaybini. Evidence regarding Abii Hanifah's application of ijmi ' to the resolution of legal issues is also provided by al Saymari, who relates an interesting discussion between the khulijizh al Manyir and the three greatfiquhii 'of his time: Abii Hanifah, Mdik ibn Anas, and Ibn Abi Dhi'b a1 'Amiri. The khulijiuh asked them about his rule over the Muslims, and Abii Hanifah responded that "the khiliifuh is to be established by consulting the Muslims and concluding ijrnii ' of the faithful ."37 This reference also supports our conclusion that Abii Hanifah was the first jurist who considered consensus a legal source. A1 Saymari refers to a statement by a1 'Aniri to the effect that the khiliifah was to be established by the ijrnii ' of the pious people to show that the latter supported it.38 However, the mention of ijrnii ' was found in the teachings of the Hanafi jurists, and there is a great deal of evidence that Abii Hanifah and his disciples, Abii Yiisuf and al Shaybini, relinquished qiyiis in favor of the consensus of the corn pan ion^.^^ Imam a1 Awzg'i (d. 157 AH) frequently applies the word ijrnzl ' to the rules upon which the jurists have agreed.4o The ijmii ' of the Companions and that of the jurists has also been referred to by Sufyiin a1 Thawri who, according to Ibn Qudimah and Ibn Hazm, considered both of these sources.41 Imam Milik (d. 179 AH) regards consensus as a source of the Shari'ah. His critics point to a confusion between his two principles of ijmi ' and the hmal (practice) of the people of Madinah. While he is often alleged to uphold only the ijrnii ' of the people of Madinah, there is no evidence that he rejected any ijrnii ' of the ummah. Al Biji and a1 Shinqiti, both chief exponents of Maliki thought, discuss this view clearly.42 In case of a difference among thefiquhii 36AbU a1 Husayn al BaSri, a1 Mu 'tumudfi Usil a1 Fiqh, ed. Hamidullah (Damascus, Syria: 37Husayn ibn 'Mi al Saymari, rUchbur AbiHunlfah (Beimt: Dar a1 Kitab al 'Arabi, 1976), 59-60; 38Al Saymari, Akhbur Abi Hunlfah, 59-60; a1 Kandari, a1 Munuqib, vol. 2, 4. 39Al Sarakhsi, a/ MubSu!, vol. 1, 56-7 and vol. 6, 210-1. 401bn Qudimah, a1 Mughni, vol. 2,719-20, and vol. 7,357-451; a1 Sarakhsi, alMubsit , vol. 6, p. 26. 411bn Qudimah, alMughni, vol. 2, 102, vol. 6,540-1, and vol. 7,292; 'Ali ibn Ahmad ibn Hazm, a1 Muhall2 (Cairo: Maktabat a1 Jumhuriyah a1 'Arabiyah, 1387/1967), vol. 9, 444. 42Abu a1 Walid a1 Baji, Kitub a1 Minhujfi %nib a1 Hijuj, ed. Abd a1 Majid Turk: (Paris, 1978), 21-2; Abd Allah ibn Ibrahim a1 Shinqitj, Nushr a/ Bunid ' a h Marcqial Su 'id (published by the governments of Morocco and the United Arab Emirates, n.d.), vol. 2, 81. a1 Ma'had a1 I'limi a1 Faransi, 1385/1965): vol. 2, 942. a1 Kandari, alMun2qib; vol. 2, 4. 180 The American Journal of Islamic Social Sciences 9:2 Malik has recourse to the practice of the people of Madinah, itself a principal source of law.43 A1 BSji considers it a kind of ijmii ‘ and accepts the view that the consensus of the jurists of Madinah has legal authority. Upholding this view, he argues that Abii Yiisuf also accepted Malik’s principle of the practice of the people of Madinah. An example is cited in which Mdik and Abii Yiisuf conducted a dialogue in the presence of the khalijizh Hanin a1 Rashid to determine the exact measure of a ‘ (a cubic measure), during which Malik produced evidence in support of his view from the practice of the people of Madinah. Abii Yiisuf accepted it as a valid Imam al Shlfi‘i (d. 204 AH) discusses ijmii ‘ in a1 Risdah and al Umm and also accepts it as a legal doctrine and a source of fiqh, based on evidence from the Qur’an, the Sunnah, and the practice of the Companions of the Prophet. His arguments come from the Sunnah, especially the hadith enjoining the Muslims to hold fast to the ~ m m a h ~ ~ and the one narrated on the authority of ‘Abd Allah ibn Mas‘iid: “There are three things which a Muslim’s heart should not grieve for: sincerity in action for the sake of Allah, admonition to the Muslims, and abiding by the c ~ m m u n i t y . ” ~ ~ The jurists also used ijmii‘ to determine the rules of inheritance and testamentary declaration (i.e., the principle that testamentary declaration cannot be made in favor of a direct heir was added by the Sunnah) as well as those regarding the prayers and fasts missed by menstruating women. According to a1 Shifi‘i, ijmii ‘ was established on this topic on the basis of a hadith that a wajiyah (will or testamentary declaration) is permitted to dispose of one-third of property to one who is not a direct heir.47 Another example given by a1 Shafi‘i is that a woman is not allowed to say prayers or to fast during her menstrual period. But while she does not have to make up the missed prayers later, she must make up the missed fast days after her period ends. This decision was taken as a result of ijmii ‘ . 48 The jurists generally refer to the tradition “My ummah will never agree on deviation”49 as an argument for the authority of ijmii ‘ . While a1 Shafi‘idoes not mention it, he has the same opinion, for he says that: “We know that the common people do not agree on a thing contrary to the Sunnah of the Prophet or on e~~or.’’~O 431bid. 44Al Biji, a1 Minhiij’, 23. 45Al Shifi‘i, a1 Risdah, 175, 182. 4bAl Shifi‘i, a1 Risalah, 173 (see article 1102). 47Al Shifi‘i, a1 RisZlah, 20-21, 39-40. 48Al Shafi I, a1 Risalah, 62. 49M~harnmad ibn k i d ibn Mijah, Sunan Zbn Muah (Cairo: Dir Ihyi’ a1 Kutub a1 ‘Arabiyah, 137211952), vol. 2, 1303; al Tirmidhi, Sunan, vol. 4,416; IbnHanbal, alMwnad(Beirut: al Maktab a1 Islam-, n.d.), vol. 5, 145; al Mimrdi, Adab a1 QU&, vol. 1, 451; a1 Dirimi, a1 Sunan, see “Muqaddimah” (#8). 50Al Shifi‘i, a1 Rislah, 204. Faruqi: The Development of om-‘ 181 He cited several Qur’anic verses in ul Umm that ijmii ‘ is not subject to Al Shlfi‘i upholds the idea of agreement and rejects disagreement when consensus is achieved on the basis of the following verses: “And be not like those who are divided amongst themselves and fall into disputation after receiving clear proofs”52 and “Nor were the people of scripture divided until after the clear evidence came to them.”53 In addition, al SMi‘i accepts ijmii ‘ if it is based on the Qur’an, the Sunnah, or a preceding ijmii ‘ , but not if it is based on rn ’y (opinion) or lacks a basis in the Qur’an or the S ~ n n a h . ~ ~ However al Mlwardi, a Shlfi‘i jurist, accepts ijmii ‘ based on qiyiis or istidliil. 55 Alpnad ibn Hanbal and the jurists of his school also accepted consensus as a source of authority. Ibn Hanbal had two opinions on this matter. According to one, he recognizes only the ijmi ‘ of the Companions but, in the other, he views ijmii ‘ in every age as a mandatory authority.56 Later Hanbali jurists recognize consensus as it was advocated by al Shaybh-and al Shlfi‘i. Ibn al Farrl’, a great Hanbali jurist, writes that ijmii ‘ is a decisive imperative authority and that it therefore must be referred to in matters of fiqh, statements which he backed up with prophetic u w t h , such as the one that says the ummah will not agree on a de~iation.~’ He further explains that he considers ijmii ‘ decisive because it is carried out by the mjtuhidiin of the time and because it is possible to be aware of the views of every mujtuhid in the ummah on a certain issue. 58 Ibn Hanbal , according to one of his two opinions, and the Zlhiri jurists confine consensus to the Companions of the Prophet and consider the practical difficulties in the process of the development of ijmii ‘. Ibn Qud-, a Hanbalijurist (d. 620 AH), however, recognizes it in every age; he does not confine it to the time of the Companions. 59 While discussing legal issues, he frequently refers to the ijmii ‘ of the Companions. 6o Ibn Hazm (d. 456 AH) raises the question of practical difficulties after the Companions by asserting that it became much harder to know the opinion of everyfuqih after Muslims had spread throughout the world.61 According to him, there are only three types of gmi ‘: a) that which has been established on the fundamentals of Islam and is derived from those a(zii&th from the time and the 51Al Shifi‘i, a1 Umm (Beirut: Dir a1 Ma‘rifah, 1393/1973), vol. 7, 276-9. 52Qur’an 3 : 105. 53Qur’an 98:4; al ShXi‘i, a1 Umm, vol. 7, 285. 54Al Shsfi‘i, a1 Risdah, 203-4; al ShSi‘i, a1 Umm, vol. 7,276-7,279. Miwardi, Adab a1 Q&jZ, vol. 1,455. 56Al ‘ h i d i , a1 fikcSm, vol. 1, 328; Ibn Qudimah, &w&t a1 Niiqir, 74. 57Al Turki, UsGl Madhhab a1 Im2m A w (Cairo: Dir al Kutub al Misriyah, 313). Quoting from Ibn al F a d , a1 ‘U&fi Us$ al fiqh (Cairo: D k al Kutub al Miq-iyah, manuscript). 581bid., 314. 591bn Qudimah, Raw& a1 Niizir, 74. 6oIbn Qudimah, a1 Mughnl, vol. 2,99400, 72W. 611bn Hazm, a1 @kiim, vol. 4, 502; M. Bernard, “Ijma’,” in Encyclopedia of Islam. 182 The American Journal of Islamic Social Sciences 9:2 Sunnah of the Prophet which, based on the frequency and chains of transmission, are considered to be absolutely authentic ( W t h rnutuw6tir); b) ijmii ‘ based on the eyewitness reports of people who actually saw the Prophet do something, such as performing the prayer in a sitting position among the people and, as mentioned by Ibn Hazm, giving the land of Khaybar to the Jews on the condition that half of the harvest muld be paid to the people of Madinah, and other universal practices of the Prophet; and c) accounts dealing with the prophetic Sunnah which have reached us through reliable sources. Consensus was gradually established on some of them while others remained in dispute.62 Later jurists, such as Abii al Husayn al Baqri (d. 436 AH), Abii Bakr ibn Alpad al Sarakhsi (d. 490 AH), Abii H h i d d Ghaziili (d. 535 AH), and Abii al Hasan ‘Mi al ‘&di (d. 631 AH) discusssd ijmii ‘ more academically, defined it in closer terms, and presented it as a complete legal doctrine.63 According to the generally accepted (although still slightly disputed) classical definition, ijmii ‘ is the unanimous agreement of the contemporary jurists on a Shari‘ah ruling.64 The classical jurists, as seen in their literature, confined consensus to the legal questions in the SharFah. Thus, ijmii ‘ sought to maintain a general agreement within the ummah on the fundamentals of Islam and also to pave the way for developing identical views (as far as possible) on particular Shari‘ah rulings. Due to its technical speciality, its practice was limited to those scholars qualified for ijtihad (called uhl ul hall wu ul ‘uqd by al Ghaziili and al ‘Amidi) . 65 However, the early scholars employ the terms ‘ulumii ’and fuquhii ’ interchangeably.66 The change in terminology might have occurred when the ulama became more involved in politics and could claim a certain authority. The term uhl al hall wu al ‘uqd has a political significance, and al G h d i defines it as those mujtahidiin whose fatwas and scholarship are accepted by the 6ZIbn Hazm, a1 Z!kimfi U+Ul a1 &krim, ed. @ad Shikir (Cairo: Matba‘ah al ‘Asimah, 63A1 Basri, a1 Mu‘tamad, vol. 2, 457-540; al Ghazli, a1 Mustasfa, vol. 1, 173-216; al 64Al BaSri, a1 Mu ‘&mad, vol. 2,457; al Ghazli, a1 Mustasfa, vol. 1, 173; Ibn Qudhah, b5A1 G h d i , a1 Musts@, vol. 1, 191; al ‘&di, a1 @khn, vol. 1, p. 281. 66Al Miwardi, Adab a1 Q& 450 (“Ahl al ‘Ilm”); al Khatib al Baghdzidi, a1 Faqih, vol. 1, 170 (‘“ al Ijtihad”); Ibn e m , a1 Z&im, vol. 4,495 (“Ulama”’); Ibn Qudimah, Raw@ a1 Niqir, 67 (”Ulama”’); al Sarakhsi, UqUl a1 Samkhsi, ed. AbU al Waf2 al A f g h - (Beirut: Dir al Ma‘rifah, 33884973) vol. 1,3ll (’“Ilm al Mujtahid); D 6 ~ d Ztihiriused the wordfuqahr?: ’. See al Biiji, a1 Minhcij, 22. 1968), V O ~ . 4, 505-6. ‘&nidi, al W m , vol. 1, 282-406. Raw@ a1 Niig’r, 67; al ‘ b i d i , a1 fikrim, vol. 1,281-2. 67Al Sarakhsi, a1 M u s w a , vol. 1, 181. Faruqi: The Development of &n~? 183 Kinds of Ijmii' There are several levels of authority for ijmii ' . The most important is the consensus conducted by the Companions of the Prophet. The Zm- jurists accept only this type of ijmii ', and al Shayblni views it as the most authentic. As it is based on the Qur'an and the Sunnah, no one can reject its authority. In other words, it is as authentic as that proved by the Qur'an and the S~nnah.~~ Al Layth ibn Sa'd (d. 175 AH) is reported to have based his decisions on the consensus of the Companions.69 An absolute ijmi~' is established when some of the Companions issued a htwa that was accepted orally by the others. This ensures the certainty of belief and is a decisive authority to all Muslims. However, the jumhiir jurists accept consensus in every age and generation. Consensus established by the explicit agreement of all contemporary jurists is called al 'uzimah or ijmii ' al qadi. The authority and validity of this kind of ijmij ' is accepted by the jurists of the four Another kind of consensus is ijmij ' sukidi (silent ijmij '), which takes place when those jurists expressing their views meet with no verbal opposition from other jurists. The latter group's silence, even after the passage of enough time for reflection and the lack of force, is considered approval. The majority of the Hanafi jurists, some of the Shlfi'i, and other jurists see this type of ijmii ' as established and valid.l' Al Ghazdi and Ibn Qudhah accept this consensus provided that there is circumstantial evidence indicating that those who did so were pleased with it (i.e., tacit consent).72 A mujtahid is not obliged to follow others' opinion blindly but may conduct hidher own ijtihad73 due to hidher ability to examine and weigh the various legal arguments. If a mujtahid keeps silent after hearing what other scholars have to say, it means agreement, for scholars usually express their views when they differ. Consensus in the form of an agreed-upon opinion arrived at by the approval of a majority of the jurists remains controversial. Most do not consider it as ijmii ' , although a small group of scholars does accept it when it is constituted by an absolute majority (i.e., the disagEement of a few scholars does not affect its validity). Muhammad ibn Jarir al3bari (d. 310 AH) is the leading advocate of 68A1 Sarakhsi, a1 U@l, vol. 1, 318. 69jbn Hazm, a1 Mu&llii, vol. 9,444. 70Al S d s i , U$, vol. 1,303; 'Ali ibn Mt&ammad al Bazdawi, U@l a1 &Izdaws(Karachi: 'lAl Sarakhsi, U$, vol. 1,303 (al Sarakhsicalls it i jki 'a1 rukh&); al 'knidi, a l e , 72Al G h d i , a1 Mustasfa, vol. 1, 191-2; Ibn Qudknah, Raw& a1 Niiqir, 77. 731bn Hazm, a1 w m , vol. 4,507; al 'knidi, a1 fikcim, vol. 1,336. .(%LA + pi L+ & JS d 4ii 4 +i) Nur Muhammad, n.d.), 239. vol. 1, 361. 184 The American Journal of Islamic Social Sciences 9:2 this view. 74 According to al ‘ h i d i , al Tabari, Abii Bakr al &I, Abii al Husayn al Khayyg! (a Mu‘ tazili) , and Ibn Hanbal (according to one tradition from him) all recognize consensus when it is concluded by the majority of the jurists. One group of jurists believes that the opposition of a few people does not affect the validity of ijmii ‘ but, if the opposition reaches the level of tawiitur (absolute authenticity), ijmi ‘ cannot be formed. 75 It appears that Ibn al Fan%’ acknowledges the authority of ijmii ‘ by a majority in religious and political matters for, accordrng to him, the khulafa’alriishidiin derived their authority from the consensus related to their Wlihfah. He claims that the legitimacy of Abii Bakr’s khihfah was the consensus ofthe companion^,^^ as were the reigns of ‘Ut l~ni in ,~~ and even that of who was chosen by a majority of the Muslims (even though Mu‘gwiyah and his supporters opposed this decision and did not acknowledge the validity of ‘A1I’s rule). Thus a majority decision, according to him, constitutes a valid ijmii ‘ . It seems appropriate to divide the issues into two categories: ‘ibiidiit (i.e., religious values and Shari‘ah fundamentals) and rnu‘iimliit (i.e., social, economic, and political issues). The majority’s agreement on a m ‘iimaht issue must constitute consensus. This view, though not very popular among the jurists, has been attractive to scholars who pursue a rational approach and a logical interpretation of the doctrine of i jm i ‘. Those jurists who do not accept this as ijmii ‘in the technical sense do recognize it as abujjah (authority) Those who accept consensus by the majority look at its practical aspect. Arriving at consensus in a literal sense is very difficult, particularly when it is based on analogical reasoning. There is no obstacle to accepting the consensus of the majority on social and political matters. Supporters of ijmii ‘by the majority of the jurists also have some arguments. For example, the word “ummah” in the hadith, “My ummah will never agree on a deviation,” can mean all members of the community, but litemlly applies to the majority of Muslims. There are many examples in Arabic literature which show that such collective nouns can be used in this way. For example, when it is said that “the Quraysh are traded’ or “the Banii l h i m respect their neighbors,” it means the majority of those two tribes have that particular characteristic. The prophetic Mth which directs the community to follow thejamii ‘ah (interpreted to mean the overwhelming majority) is often cited to support this view.81 74Al ‘ k d i , a1 fikiim, ml. 1, 336. 751bn al Fami’, a1 Mu ‘tamad, 225. ”Ibid., 228. 771bid., 229. 781bid., 231-2. 79Al GhazJi, a1 Mwm&, vol. 1, 187; al ‘ h d i , a1 &kiim, vol. 1,336. GhazJi, a1 Musta+&, vol. 1, 186-7; al ‘ h d i , a1 L$kiitn, ml. 1,336-44. 81Al G h d i , a1 Musm#z, vol. 1, 198; al ‘ h i d i , a l l , vol. 1, 315, 346,402. Faruqi: The Development of Zjm-‘ 185 The Infallibility of Zjmii‘ The concept of the ummah’s infallibility ( ‘ipmih) vis-‘a-vis ijmi ‘ has caused the jurists some problems, for, according to them, if even one person questions the decision the ummah’s infdlibility is thrown into question. Thus, the disagreement of a solefaqih undermines the infallibility which guarantees the umtnah’s security against errors and wrong judgments. Consensus on the basis of W b & y gmnts, according to the classicaljurists, an assurance of certainty.82 This concept of inlidibility is based on the prophetic tradition which states: “My ummah will never agree on a deviati~n.”~~ Almost all of the classical jurists quote this hadith in support of the ummah’s infallibility.84 One exception is al Shifi‘i but, although he does not mention it, he does believe that the ummah cannot agree on an error in the case of absolute ijmi ‘ . Let us examine a hadith which is regarded as weak by way of transmission but as sound in meaning.85 Although it is not regarded as absolutely authentic (mutawiitir), it is considered to be so in meaning (mutawiitir bi a1 ma ‘nii) because there are several a w t h that convey the same meaning and support each other. The hadith, as reported by al TirmicKon the authority of Abd All& ibn ‘Umar, states that the Prophet said: ‘Allah will not allow my ummah or the ummah of Muhammad to agree on an error, and Allah’s hand is over the community. Whosoever disassociates from the community will be cast into hell.”86 Ibn Mijah also reports it, with a slight variation and on the authority of Abii Khalf al A‘mi, as follows: “My ummah will never agree on an error. When you see differences you must follow the overwhelming rnaj~rity.”~’ Ibn Hanbal relates it, on the authority of Abii Dharr, as: “Two persons (together) are better than one, and three than two, and four than three. You, therefore, must hold fast to the community, for Allah never makes the community together except that they are in the right way? These are the versions of the hadith which the jurists used to devise the concept of the ummah’s infallibility. Others do not agree with the above interpretation, but say that it only means that the umtnah as a whole will not agree to contradict the Qur’an or the SUM& (disagreement on an error is different from infallibility). Ibn Hum, who is not in favor of this concept of infallibility, does not mention this hadith to prove the authority of ijmi ‘. He interprets the hadith as meaning that there will always Y’bn Mi@, S u m , vol. 2, 1303; Ibn Hanbal, M d , vol. 5, 145. ~ 3 1 b n H a a n , a l ~ , v o l . 4 , 4 % ; a l ~ ~ ~ a l B ~ ~ ~ , a l t C h q T h , v o l . 1,160-2;alMkd, Aahb a1 Q&, vol. 1,451; al Bazdawi, U@l, 245; a l Sarakhsi, U$, vol. 1,299; al GhazAi, a1 Mustasfa, vol. 1, 175; al ‘hid, a1 e, vol. 1, 3134. s5Al G h d i , at M w w a , vol. 1, 175-7; al ‘ h d i , al fikiirn, vol. 1, 313-4. s6Al TirmidhI, Sunan, wl. 3, 315 (#2255). Mgjah, Sunan, vol. 2, 1303 (#3950). Hanbal, Muwad, vol. 5, 145. 186 The American Journal of Islamic Social Sciences 9:2 be disagreement within the ummah, but that the entire ummah shall never fall into error.89 The m&udfithiin have reported this hadith in the chapter of uZJitan, showing that they understood that it pertained to particular situations of dispute. Thus it is their opinion that this hadith only gives instructions to follow the ummah to preserve its unity and intergrity, for the entire ummah will not go against the obvious teachings and guidance of the Shari‘ ah. The context of the hadith also includes awarning against the consequences of differences within the ummah. Thefuqih al Juwayni seems hesitant to accept the doctrines of infallibility and consensus based on the hadith under discussion, which, in his opinion, says only that the ummah will neither depart from Islam nor convert to infidelity.90 Another understanding of this concept is when ijmii ‘ is based on a clear mq.y (text), such as the fundamentals of Islam. The ummah is infallible in this instance because the m7.y.y is from God. I m h al ShiX‘iaccepts consensus based on mqj either from the Qur’an or the Sunnah. But, according to him, consensus cannot be achieved from an i j t i M opinion having no basis in the Qur’an or the sunnah .91 Another interpretation is also possible, one which is probably more logical and acceptable: the use of ijtihad to reach ijmii ‘ . If such decisions gain the assent of other jurists, over the course of time they become ijmii ‘ . A mujtuhid who reaches a mistaken conclusion is not, according to the Sunnah, accountable for his mistake, for he has attempted to decide a particular issue. This is regarded as sufficient for action, and such a person is rewarded by God. According to a hadith recorded by al Bukhsri, a mujtuhid who reaches the right conslusion deserves a double reward. 92 The same is true of those who try to decide matters through consensus. This may be termed “condonable error” rather than “infallibility.” Ibn &am’s view, as discussed earlier, seems adequate and practicable. Simply stated, the problem of infallibility does not arise with his view because he states that consensus must be based on a na.y.y from either the Qur’an, the Sunnah, or both. As these sources are infallible, any resulting consensus will also be m i b l e . If the view of the classical jurists were adopted, it mould mean that no one muld be allowed to disagree or have a different opinion, as this would jeopardize the ummah’s infallibility. Thus, in reality, it would seem tobe a more theoretical concept. Al Juwayni also has an interpretation in which this problem does not arise 0911m H m , a1 I&im, vol. 4,496-7. 90 ‘Abd-al Miilik al JuWayni, a1 &&fi U$ alFqh, ed. A M al ‘&in al Dib (Cairo: Maktabat I m h al Haramayn, 1400), vol. 1,687-89; Ghiyith a1 Umam, ed. Mu$@& Hih- (Alexandria: Dir al Da’wah, 1402/l979), 34-5. 91A1 S m i , a1 Risdah, 203-4; al S h a i , a1 Urn, vol. 7,276-7. 92Al B W - , a1 Jlimi‘ a1 *ih, vol. 3, part 9, 132-3. Faruqi: The Development of Ijrnii' 187 and which, moreover, can make ijmii' a viable doctrine. In his opinion, there is no clear Qur'anic text or hadith referring to the principle or the practice of consensus. But, through his use of analogy, al Juwayni proves the authority of consensus by arguing that there are certain issues concerning what is f;aliil and what is IJ,ariim which have been agreed upon by the ulama across the generations and despite geographic location. Such an emphatic resolution by the trusted, learned, and upright scholars of the religious sciences must be based on solid shar 'i (legal) grounds and cannot be mistaken. Moreover, the number of scholars supporting the decision is so large that there is no reason to reject their consensus. 93 This interpretation of ijmii ' seems capable of saving us from the dubious issue of infallibility which makes the doctrine impractical. 93Al Juwayni, Ghiyath, 40-1.