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:
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.[11. For details on the essential requirements of ijma' see Khallaf, `Ilm, p.45ff; Shawkani, Irshad, p.71ff.]
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 Meccaand 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 thedoctrinal 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.[12. Amidi, Ihkam, I, 226. Bazdawi,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 regardingthe essentials of the faith. Ijma` is thus confined to the mujtahidun only in regard to matters which require expert knowledge. See for details, Bazdawi,Usul, III, 239.]
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.
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.[13. Amidi, Ihkam, I, 235.]
In regard to the rules of fiqh, it is the ijma' of the fuqaha alone which is taken into account.[14.Shawkani,Irshad, p.71.] 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 inijma`. 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'.[15. Abu Zahrah, Usul, p.162.] The Hanafis preclude atransgressor (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 nodisqualification. [16. Amidi,Ihkam, I, 261; `Abdur Rahim, Jurisprudence, p.122.] 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.[17.Abu Zahrah, Usul,p.164.]
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 ifijma` did not bind its participants, it should not bind anyone else either.[18. Shawkani, Irshad, p.71.] With regard to the tacit ijma `(for 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.[19. Amidi, Ihkam, I, 257; Ibn Hazm, Ihkam, IV, 154.]
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'.[20.Ghazali, Mustasfa, I, 121.]
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 to its place. But once an ijma' is 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.[21. Khallaf, `Ilm, pp. 46-47; AbuZahrah, Usul, p. 167.]
Source: Principles of Islamic Jurisprudence ~ M.H.Kamali
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