Short Note on Ijma

IJMA

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.

Meaning of Ijma

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 `soand-

so decided upon such-and-such'. This usage of ajma`a is found both in the Qur'an and in the

Hadith.[1. In the Qur'an the phrase fajma'u amrakum which occurs in sura Yunus (10:71) means 'determine your plan'. Similarly fajma'u kaydakum in sura

Taha (20:64), where the Prophet Noah addresses his estranged followers, means 'determine your trick'. The Hadith la siyama liman lam yajma'al-siyama min allayl

means that fasting is not valid unless it is determined (or intended) in advance; i.e. from the night before. 

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.

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 concurrent 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.

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 however, distinguishes matters which do not

require specialised knowledge from other matters, and suggests that no discrimination should be made between the layman and the jurists regarding

the essentials of the faith. Ijma` is thus confined to the mujtahidun only in regard to matters which require expert knowledge.

3. 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.

4. 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-ijma'.The Hanafis 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.

Ijma' in the Qur'an:

The Qur'an (al-Nisa', 4:59) is explicit on the requirement of obedience to God, to His Messenger, and

`those who are in charge of affairs', the ulu al amr.[23. The ayah (4:59) provides: 'O you who believe, obey God, and obey the

Messenger, and those charged with authority among you.'] It is also suggested that this ayah lends support to the infallibility

of ijma`. According to al-Fakhr al-Razi, since God has commanded obedience to the ulu al-amr, the

judgement of the ulu al-amr must therefore be immune from error. For God cannot command obedience

to anyone who is liable to committing errors. The word `amr' in this context is general

and would thus include both secular and religious affairs. The former is discharged by the political

rulers, whereas the latter is discharged by the ulema. According to a commentary attributed to Ibn

'Abbas, ulu al-amr in this ayah refers to ulema, whereas other commentators have considered it to be a

reference to the umara , that is, 'rulers and commanders'. The zahir of the text includes both, and

enjoins obedience to each in their respective spheres. Hence, when the ulu al-amr in juridical matters,

namely the mujtahidun, reach a consensus on a ruling, it must be obeyed.

Further support for this conclusion can be found elsewhere in sura al-Nisa' (4:83) which once again

confirms the authority of the ulu al-amr next to the Prophet himself.[ The ayah (4:83) provides: `If they would only refer

it to the Messenger and those among them who hold command, those of them who investigate matters would have known about it.'

The one ayah which is most frequently quoted in support of ijma' occurs in sura al-Nisa' (4:115), which

is as follows:

''And anyone who splits off from the Messenger after the guidance has become clear to

him and follows a way other than that of the believers, We shall leave him in the path

he has chosen, and land him in Hell. What an evil refuge!''

Al-'Imran (3:102):`Cling firmly together to God's rope and do not separate.

Al-Shura (42:10):'And in whatever you differ, the judgment remains with God', 'which

implicitly approves that in which the community is in agreement.'

Al-Nisa' (4:59): `Then if you dispute over something, refer it to God and the

Messenger.'

 The Sunnah on Ijma `

The Hadith which is most frequently quoted in support of ijma' reads:

''`My community shall never agree on an error.''

The last word in this Hadith, namely al-dalalah,

is rendered in some reports as al-khata.' The jurists have used the two words interchangeably, but in the

classical Hadith collections this Hadith has been recorded with the word al-dalalah.

Al-Ghazali has pointed out that this Hadith is not mutawatir, and as such, it is not an

absolute authority like the Qur'an. The Qur'an on the other hand is mutawatir but contains no nass on

ijma`. Having said this, however, al-Ghazali adds that a number of prominent Companions have

reported ahadith from the Prophet, which although different in their wording, are all in consonance on

the theme of the infallibility of the community and its immunity from error.

Leading figures among the Companions such as 'Umar b. al-Khattab, `Abdullah b. Mas'ud, Anas b.

Malik. `Abdullah b. Umar, Abu Said al-Khudri, Abu Hurayrah, Hudhayfah and others have reported

ahadith which include the following:

1. My community shall never agree upon an error (al-khata'):

2. God will not let my community agree upon an error:

3. I beseeched Almighty God not to bring my community to the point of agreeing on

dalalah and He granted me this:

4. Those who seek the joy of residing in Paradise will follow the community. For Satan

can chase an individual but he stands farther away from two people:

5. The hand of God is with the community and (its safety) is not endangered by isolated

oppositions:

6. Whoever leaves the community or separates himself from it by the length of a span

is breaking his bond with Islam:

7. A group of my ummah shall continue to remain on the right path. They will be the

dominant force and will not be harmed by the opposition of opponents:

8. Whoever separates himself from the community and dies, dies the death of ignorance

(jahiliyyah):

9. And finally, the well-known saying of 'Abdullah bin. Mas'ud which is as follows:

'Whatever the Muslims deem to be good is good in the eyes of God.

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 utter 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.

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 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. 'It 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. For 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.Shahi Muslim, Hadith no.38

Ibn Hazm discusses ijma' ahl al-Madinah in some length, but cites none of the ahadith that

are quoted by Amidi and others. He merely points out that some of the ahadith which are quoted in support of the Maliki doctrine are authentic (sahih), while

others are mere fabrications (makdhub/ mawdu`) reported by one 'Muhammad ibn Hasan ibn Zabalah'.

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 nass of the Qur'an. 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.

Basis (Sanad) of Ijma`

According to the majority if ulema, ijma` must be founded in a textual authority or in ijtihad. Al-Amidi

points out that it is unlikely that the ummah might reach unanimity over something that has no

foundation in the sources.The ulema are in agreement that ijma `may be based on the Qur'an or the Sunnah. There is, however, disagreement as to whether ijma' can be based on a ruling in

the secondary proofs such as qiyas or maslahah.

There are three views on this point, the first of which is that ijma` may not be founded on qiyas, for the

simple reason that qiyas itself is subject to a variety of doubts. Since the authority of qiyas as a proof is

not a subject on which the ulema are in agreement, how then could ijma` be founded on it? It is further

noted that the Companions did not reach a consensus on anything without the authority of the Qur'an or

the Sunnah. In all cases in which the Companion are known to have reached a consensus, at the root of

it there has been some authority in the primary sources.

The second view is that qiyas in all of its varieties may form the basis of consensus. For qiyas itself

consists of an analogy to the nass. Relying on qiyas is therefore equivalent to relying on the nass, and

when ijma` is based on a qiyas, it relies not on the personal views of the mujtahidun but on the nass of

the Shari'ah.

The third view on this subject is that when the effective cause (`illah) of qiyas is clearly stated in the

nass, or when the 'illah is indisputably obvious, then qiyas may validly form the bases of ijma'. But

when the 'illah of qiyas is hidden and no clear indication to it can be found in the nusus, then it cannot

form a sound foundation for ijma'. Abu Zahrah considers this to be a sound opinion: when the `illah of

qiyas is indicated in the nusus, reliance on qiyas is tantamount to relying on the nass itself.

Instances could be cited of ijma` which is founded upon analogy. To give an example, a father is

entitled to guardianship over the person and property of his minor child. By ijma' this right is also

established for the grandfather regarding his minor grandchild. This ruling of ijma` is founded upon an

analogy between the father and grandfather. A similar example is given regarding the assignment of

punishment for wine drinking (shurb). This penalty is fixed at eighty lashes, and an ijma' has been

claimed in its support. When the Companions were deliberating the issue, `Ali b. Abi Talib drew an

analogy between shurb and slanderous accusation (qadhf). Since shurb can lead to qadhf, the prescribed

penalty for the latter was, by analogy, assigned to the former. The alleged ijma` on this point has,

however, been disputed in view of the fact that 'Umar b. al-Khattab determined the hadd of shurb at

forty lashes, a position which has been adopted by Ahmad b. Hanbal. To claim an ijma' on this point is

therefore unwarranted.

Transmission of Ijma`

The issue to be examined here is the nature of the evidence by which the fact that a particular question

has been determined by ijma' may be proved. From this perspective, ijma' is divided into two types,

namely 'acquired' (muhassal) and `transmitted' (manqul). The first is concluded with the direct

participation of the mujtahid without the mediation of reporters or transmitters. The mujtahid thus gains

direct knowledge of the opinions of other mujtahidun when they all reach a consensus on a ruling. But

transmuted ijma' is established by means of reports which may either be solitary (ahad) or conclusive

(mutawatir). In the case of transmission by tawatur there is no problem of proof, and ijma' which is

transmitted by tawatur is proven in the same way as acquired ijma'. But there is disagreement regarding

ijma' which is transmitted by way of solitary reports. Al-Ghazali points out that a solitary report is not

sufficient to prove ijma', although some fuqaha have held otherwise. The reason is that ijma' is a

decisive proof whereas an ahad report amounts to no more than speculative evidence; thus, it cannot

establish ijma'.

Al-Amidi explains that a number of the ulema of the Shafi'i, Hanafi and Hanbali schools validate the

proof of ijma' by means of solitary reports whereas another group of Hanafi and Shafi'i ulema do not.

All have nevertheless agreed that anything which is proved by means of a solitary report is speculative

of proof (thubut) even if definitive in respect of content (matn).

Proof by means of tawatur can only be claimed for the ijma` of the Companions; no other ijma' is

known to have been transmitted by tawatur. This is the main reason why the fuqaha have differed in

their views concerning any ijma` other than that of the Companions. A large number of the ulema of

usul have maintained that transmission through solitary reports amounts to speculative evidence only.

When ijma' is based on such evidence, it loses its value and the hukm for which ijma` is claimed must

be referred back to the source from which it was derived in the first place.

Reform Proposals

The modern critics of ijma' consider that ijma' according to its classical definition fails to relate to the

search for finding solutions to the problems of the community in modern times. Ijma` is hence

retrospective and too slow a process to accommodate the problems of social change. These and other

considerations concerning the relevance of ijma` to social realities have prompted a response from

modern scholars. We have already discussed the view of `Abd al-Wahhab Khallaf in regard to the

feasibility of ijma`. Khallaf, however, was not the first to criticise ijma'.

An early- critique of ijma' was advanced by Shah Wali Allah Dihlawi (1176/1762), who tried to

bring ijma` closer to reality and came out in support of `relativity' in the concept of ijma`. Dihlawi

overruled the notion of universal consensus in favour of relative ijma`. Dihlawi is also critical of the

interpretation that is given to the ahadith concerning ijma`. He argues that the Hadith, `My community

shall never agree upon an error' did not envisage ijma` at all. Hence the correct meaning of this Hadith

may be determined in the light of another Hadith which provides that `a section of my community will

continue to remain on the right path.

Ijma` in other words does not mean a universal agreement but

only the consensus of a limited number of mujtahidun. With regard to the other ahadith that are quoted

in support of ijma`, Dihlawi maintains that the two principal aims of these ahadith are the political unity

of the ummah, and the integrity of the Shari'ah. The same author maintains that ijma' can be justified on

the bases of all such ahadith that protect the unity and integrity of the community. But he adds that

ijma` has never been meant to consist of the universal agreement of every member of the community

(or of every learned member of the community for that matter), as this is plainly impossible to achieve.

It has neither happened in the past nor could it conceivably happen in the future. Ijma', according to

Shah Wali Allah, is the consensus of the ulema and men of authority in different towns and localities. In

this sense, ijma' can be held anywhere at any time. The ijma' of the Companions during the caliphate of

Umar b. al-Khattab, and the ijma` that was concluded in Mecca and Madinah under the pious caliphs,

are all examples of ijma` in its relative sense.

Muhammad Iqbal is primarily concerned with the question of how to utilise the potentials of ijma` in

the process of modern statutory legislation. He considers it an important doctrine, but one which has

remained largely theoretical. `It is strange,' Iqbal writes, that this important notion 'rarely assumed the

form of a permanent institution'. He then suggests that the transfer of the power of ijtihad `from

individual representatives of schools to a Muslim legislative assembly is the only possible form

ijma` can take in modern times'.

In such an assembly, the ulema should play a

vital part, but it must also include in its ranks laymen who happen to possess a keen insight into affairs.

Furthermore Iqbal draws a distinction between the two functions of ijma', namely:

Discovering the law and implementing the law. The former function is related to the

question of facts and the latter relates to the question of law. In the former case, as for

instance, when the question arose whether the two small suras known as

'Mu'awwazatain' formed part of the Qur'an or not, and the Companions unanimously

decided that they did, we are bound by their decision, obviously because the

Companions alone were in a position to know the fact. In the latter case, the question is

one of interpretation only, and I venture to think, on the authority of Karkhi, that later

generations are not bound by the decisions of the Companions.

Iqbal goes on to quote the Hanafi jurist Abu'l-Hasan al-Karkhi as saying: 'The Sunnah of the companions is binding in matters which

cannot be cleared up by qiyas, but it is not so in matters which can be established by qiyas'.

It is thus clear that Iqbal retains the binding character of ijma' only insofar as it relates to points of fact,

but not with regard to ijma' that is based on juridical ijtihad. This distinction between the factual and

juridical ijma' will presumably not apply to the ijma` that Iqbal has proposed: the collective decisions of

the legislative assembly will naturally be binding on points of law.

Iqbal's proposed reform has been fairly widely supported by other scholars. It is a basically sound

proposal. But to relate this to the idea of a distinction between the factual and ijtihadi ijma` seems

questionable. Apart from the difficulty that might be involved in distinguishing a factual from a

juridical ijma' one can expect but little support for the view that the ijma` of the Companions on ijtihadi

matters is not binding.

Iqbal's views have, however, been criticised on other grounds. S. M. Yusuf has observed that Iqbal was

mistaken in trying to convert ijma` into a modern legislative institution. Yusuf argues that ijtihad and

ijma' have never been the prerogatives of a political organisation, and any attempt to institutionalise

ijma' is bound to alter the nature of ijma` and defeat its basic purpose. For ijtihad is a non-transferable

right of every competent scholar, and a mujtahid is recognised by the community by virtue of his merits

known over a period of time, not through election campaigns or awards of official certificates. The

process of arriving at ijma` is entirely different from that of legislation in a modern state assembly.

Ijma' passes through a natural process which resembles that of the 'survival of the fittest'. No attempt is

made in this process to silence the opposition or to defeat the minority opinion. Opposition is tolerated

until the truth emerges and prevails. Ijma' is a manifestation of the conscience of the community, and it

is due mainly to the natural strength of ijma' and the absence of rigid organisation 'that no one is able to

lay his hands on Islam; when anyone tries to hammer Islam, he ultimately finds to his chagrin that he

has only been beating in the air'.

Ahmad Hasan finds some weaknesses In Yusuf's criticism of Iqbal, and observes that `Dr Yusuf has

probably not understood Iqbal's view correctly.' Hasan finds Iqbal's view to the effect that ijtihad should

be exercised collectively instead of being a preserve of the individual mujtahidun, to be basically sound.

`Ijtihad today cannot be exercised in isolation. Modern conditions demand that it should be exercised

collectively. A mujtahid may be expert in Islamic learnings, but he cannot claim to be perfectly

acquainted with the social conditions of a country and the diverse nature of its problems Ahmad Hasan goes on to point out that the legislative assembly is `the right place' for the purpose

of collective ijtihad, which would in turn provide an effective method of finding solutions to urgent

problems.

The late Shaykh of al-Azhar, Mahmud Shaltut, observes that the conditions of a conclusive ijma`,

especially the one which requires the agreement of all the mujtahidun of the ummah, is no more than a

theoretical proposition which is never expressed in reality. Ijma', in reality, has often meant either the

absence of disagreement (`adam al-ilm bi'l-mukhalif), or the agreement of the majority only (ittifaq al

kathrah). Both of these are acceptable propositions which may form the basis of general legislation.

Shaltut goes on to quote in support the Qur'anic ayah in sura al-Baqarah (2:286) that `God does not

assign to any soul that which falls beyond its capacity.' Shaltut is not opposed to the institutionalization

of ijma` provided that this does not violate the freedom of opinion which must in all eventualities be

granted to the constituents of ijma`. Consensus must never be subjected to a condition which subjugates

freedom of opinion to the arbitrary exercise of political power. Shaltut further adds that since the

realization of maslahah through consensus is the objective of ijma`, maslahah as bound to vary

according to circumstances of time and place. Hence the mujtahidun who participate in ijma`, and their

successors, should all be able to take into consideration a change of circumstances and it should be

possible for them to review a previous ijma` if this is deemed to be the only way to realize the

maslahah. Should they arrive at a second ijma`, this will nullify and replace the first, and constitute a

binding authority on all members of the community.

Conclusion

Under their classical definitions, ijma` and ijtihad were both subject to conditions that virtually drove

them into the realm of utopia. The unreality of these formulations is reflected in modern times in the

experience of Muslim nations and their efforts to reform certain areas of the Shari'ah through the

medium of statutory legislation. The juristic basis for some of the modern reforms introduced in the

areas of marriage and divorce, for example, has been sought through novel interpretations of the

relevant passages of the Qur'an. Some of these reforms may rightly be regarded as instances of ijtihad

in modern times. Yet in none of these instances do the statutory texts or their explanatory memoranda

make an open reference to ijtihad or ijma`. The total absence of these terms in modern statutes is a sad

reflection of the unreality that is encountered in the strict definitions of these concepts. The classical

definitions of ijtihad and ijma` might, at one time, have served the purpose of discouraging excessive

diversity which was felt to be threatening the very existence and integrity of the Shari'ah. But there is

no compelling reason to justify the continued domination of a practice which was designed to bring

ijtihad to a close Ijtihad and ijma' were brought to a standstill, thanks to the extremely difficult

conditions that were imposed on them, conditions which often ran counter to the enterprising and

creative spirit that characterised the period of the pious caliphs and the early imams of jurisprudence.

Dr Yusuf's criticism of Iqbal's proposed reform is based on the dubious assumption that an elected

legislative assembly will not reflect the collective conscience of the community and will unavoidably be

used as an instrument of power politics. Although the cautious advice of this approach may be

persuasive, the assumption behind it goes counter to the spirit of maslahah and of the theory of ijma`

which endows the community with the divine trust of having the capacity and competence to make the

Principles