It is interesting that in this age much mention is made of the contentious nature of Ijma part in parcel I hold because there is a current aiming to revive the spirit of ijtihad so it is necessary to establish that what is considered a given may not have been the case. Secondly, the school of Imam Ahmad {r} is much more vocal today than what was the case given the backing from Saudi and thirdly because we have a new element in the equation and that is the school of Yemen. When Shaukani, Amir Sanaani, Imam Wazier and others took a shift in fiqh and turned towards ijtihad they brought a new dimension to the table and that was that what was considered established well may not have been the case.

Despite all that there is a voice that is pushing for the validity of ijma today and argues that it is much more rampant that what is argued against. This voice is a bit weak. Likewise, with the orienatalist onslaught there is a tendency to make islamic law appear as a body with no semblence of order so many writers and authors in Western academia promote ideas that are not so “established” and are actually random like say for instance Imam Tufi {r} his ideas on maslaha are not the norm in the circle of Usul but we have Wael Hallaq devote a good portion of his book “Theories Of Islamic Law” to Tufi and there are other cases of such practice. This practice really is speaking about Islamic law without a school it is a random analysis that is more deconstructionist that it is historical.

Ijma overall in its accepted form {overt} is qati not dhanni. From my studies of usul I have never heard that it does not give certainty the matter is in proving ijma. So I would hope that you can clear this aspect for me that ijma provides a probablity of truth.

Maybe we can make that the case for ijma as suquti or tacit ijma bu this version of ijma is a matter of contention as you know. As far as the hanabli school for what I know of Shaikh Ul Islam ijma needs a “nas” or a text but in any event there is an overall agreement regarding ijma of the Sahaba post the companions is where the differences appear.

In any case thanks for the effort of the blog nice and refreshing.

AS

Abul-Hussein
Allahu Al’am

Aziz,
Layth’s argument against Malik is on the same lines showing him the limitation of using precedents. That is also the reason why later Maliki scholars (and others) understand Malik’s concept as limited to the time of Companions.

Charles,
I am sorry for not being articulate enough but that was not the import of my entry to extend the principle of Ijma’a. In fact I have tried to show its limitation and the extent of disagreement it carries till it reached our times.

Hood,
…it does not reach a level of certainty in its transmission, which is extremely plausible especially in light of difference you mentioned[...]providing us a with a high enough probability of truth to base judgement on.
Ijmaa is only transmitted in the books of schools. In that way, on close observation, most of the cited cases of Ijm’aa are either tacit or have strong basis in other sources, mostly the Sunnah of the Prophet; the fact that you mentioned just ahead. Your point that Ijma’a divorces the ratio decidendi of a ruling with an Obiter Dictum is enlightening.

If we are trying to limit the power of the state in sponsoring popular opinion and making it binding on the collectivity of Muslims, then to promote Ijma as stare decisis only furthers that state’s ability to control public discourse.

When Ijma’ is formed on behalf of an independent body of Scholars, only then can it be determined to be acceptable an held by the courts in ruling for a specific case stare decisis.

In this sense stare decisis is not like Ijma, but instead like IstisHab al-Hal, of which a component is IstiHab Hal al-Ijma.

Another issue here is that Islamic law, is not merely positive law to be applied by the state on or against its citizens.
The classical works frequently cite cases in which the Gov’t decrees an opinion, and that the Hukm made by the scholars or held personally by the citizen is in direct opposition to this Hukm.

In this case, even though a particular issue of Ijma may not be taken as law by the state, it is still ethically binding on the individual. In fact, most issues of legality (whether based on Ijma or not) are binding at the individual level yet without state enforcement. State enforcement only comes as a reactionary solution to overall harm caused to the citizenry as a whole or in part and in very rare cases as a precautionary measure for anticipated harm.

“The bottom line is: The only way to reform Islamic law, so that it is completely reconciled with the modern political and social philsophy, is to figure out how our predecessors did it in the past….”

in general we should not set the “Ulama” or Islamic legal specialists as a straw man, and then knock them down because of some supposed need to proposition the state to enact change in Islamic law. (not saying that you were Abu Muhammad)
When we look back at the classical works of Usul, we find that even the authors of such works differed as to the scope of Ijma, and as to just how social, intellectual, and political issues that are said to have reasched a level of consensus are to be understood .

To echo the bottom line you stated above:
To doubt that Islamic law is not as systematic and serious as thought to be without first understanding the scope of that legal system, its application and the conditions set for those rightly qualified people to practice it is not only abuse of Islamic law, but a perhaps better example of intellectual anarchy the the supposed misuse of Ijma.

Some scholars of Usul, such as al-Tufi, explained the order of these sources in terms of nobility, not strength. In strength and proximity to certainty however, Ijma is rated #1, with the unambiguous texts of the Quran at #2. Reason being that Ijma cannot be abrogated while the Quran can.

It would seem that your above presentation of Ijma would suggest that it does not reach a level of certainty in its transmission, which is extremely plausible especially in light of difference you mentioned.
However, given the scale of Zann – Ghalabat al Zann – Yaqin presented in works of Usul, Ijmaa would by virtue of the number of authorities citing the same ruling given an induction based strength to that ruling (the ratio decidendi to your stare decisis) and providing us a with a high enough probability of truth to base judgement on.

That high probablility would only be further strengthened by the fact that for Ijma to exist it must have either an implicit or explicit basis in the Quran, Sunnah, or a combination of the two. Now this would not seem necessary in light of explicit unambiguous texts. But with the Quran as Abu Darda said “Dhu wujuh” or multi-faceted in meaning, Ijma helps to determine the predominant meanings of that ambiguity, and prevent misinterpretation and interpolation of implausible meanings.

Now as to your suggestion of redefining Islamic legal archtypes, one thing that Ijma does for us (and this is where I disagree with the analogy to stare decisis) is not so much give us a precedent to adhere to, but in more or less terms identify ratio decidendi of the ruling seperating it from the Obiter dictum attached to that ruling, which can at times carry very inaplicable connotations and impede progress in the application and understanding of Islamic law, especially when dealing with issues of custom and convention.

However, for a process of stare decisis to operate successfully and be independnet of state overrule, it would have to be a pan-Islamic “ijma” itself. In other words you would need the scholars across the Islamic world to subscribe to the same corpus of precedent, and agree to be bound by it. The logistics of this strike me as prohibitive, and still vulnerable to state manipulation.