Ali at eteraz.org takes on Ijma’a, one of the primary sources of Islamic Law, best defined as the consensus of legal opinion. He raises many probing questions and pragmatically observes that
…in a Muslim country, the ijma of scholars means nothing unless the GOVERNMENT OF THAT COUNTRY is willing to execute their consensus. If a government doesn’t manifest the consensus, it matters nothing what the scholars are consensing about.
I have few thoughts to share regarding this entry.
For that matter, which source of Islamic law matters if state is unwilling to apply the injunctions deduced from it? The injunctions explicitly derived from Quran and Sunnah do not matter equally in terms of their meaningfulness vis-à-vis socio-political philosophy if a Muslim state procrastinates in confusion or do not feel it pragmatic to execute. Therefore the problem Ali poses may as well be expanded to engage all the other sources of Islamic law.
Having said that, I would add that it would probably amount to oversimplification if we think it sufficient to assume that Ijma’a is just a ‘consensus of scholars’ in the paradigm of traditional Islamic law throughout history. In my humble opinion, most of the questions Ali asked would boil down to ‘definition’ of a particular source (in this case Ijma’a) rather than its ‘application’. Definitions, as a matter of fact, do not remain absolute and may evolve and undergo reform in terms of making sense of the law which constitutes them in a particular time. Albeit some of us may yawn when others look at history of institutions, It would not be entirely wasteful to argue that understanding history of the development of law is a pre-requisite for any meaningful reform.
Shafii’s famous comment (in Kitab al-Umm) to counter his opponents that
What you possess is not Ijma’a (agreement) but iftiraaq (disagreement)…
is enough to suggest that Ijma’a is probably the most disagreed upon source of Islamic law. The disagreement, most of the times, is so harsh that many jurists (for instance al-Nazzam al Basri, the famous teacher of al-Jahiz) have explicitly denied it as a binding source. Those who consider it binding define it in different ways, continue dividing it into various types (e.g. explicit and tacit Ijma’a) and sometimes consider its inter-dependence with other sources. Malik, for instance, refers to the agreed practice of Madinites as al-amr al mujtamaah alaiyh, calls it a binding consensus and includes it in primary sources of Sunnah. Ahmed ibn Hanbal, on the other hand, regards anyone who claims a complete consensus of legal opinion as a liar but considers the consensus of Companions of Prophet as binding for later generations. Almost similar opinions have been related by Ibn Hazm, Ibn Taymiah and Shaukani. Shafii limits Ijma’a to such basic injunctions as obligation of five prayers, number of raka’ahs and obligation to perform hajj etc.
Most of the questions about nature, sources and jurisdiction of Ijma’a have already been asked by the classical jurists and discussed adequately by many of the contemporary scholars. There are two important facts that come forth if we analyze the gist of all these classical positions on nature of Ijma’a and its various claims throughout history. 1) Majority of classical jurists agree that for any consensus to become binding, there must exists an evidence (Sanad) from other sources and 2) Most of them find it practically impossible to know the positions held by entirety of scholars as they are scattered all over the world (as evident by the famous debate between Layth and Malik). Both these facts serve as limiting factors towards any possibility of establishment and claim of consensus upon a legal opinion. While the former limits the possibility of personal or state sponsored opinions becoming binding on collectivity of Muslims, the latter substantially limits the jurisdiction of Ijma’a by reducing it to very basic injunctions already derived from either Quran or Sunnah. The example of former is Malik’s refusal to establish Muwatta as a binding code for Muslims of all lands and the latter led Ahmed bin Hanbal and Shafii to reach their respective positions.
These jurists, in their times, were no less reformists, desperately wanting consistency and methodology in application of Islamic law thereby striving to achieve congruence between Islamic methodology and socio-political philosophy of their times. Few contemporary scholars that I have studied in detail and who are well-versed with the development of Islamic law, have dealt with an ever-important issue of defining sources in Islamic Law. Javed Ahmed Ghamdi, for instance, having been fully aware of the history of development of Islamic law, does not consider Ijma’a as one of the sources of Sharia’h. “There is no way to know that a consensus has happened about a legal opinion”, one of his students argues; precisely the problem that Shafii and Ahmed bin Hanbal raised in their times.
The bottom line is: The only way to reform Islamic law, so that it is completely reconciled with the modern political and social philosophy, is to figure out how our predecessors did it in the past.
The objective is indeed difficult and obviously requires contemporary scholars to once again (re)define categories of Islamic legal archetypes. A quick solution to the problem may be to understand binding of Ijma’a as demanding subordination to a rule upheld collectively by the highest legal forum of the land. Islamic tradition, in early stages, had already seen such a forum being confined to jurist Companions and later to the theoretical collectivity of independent jurists. In terms of English common law, it is something close to the doctrine of stare decisis and may well be the adherence of lower courts to the precedents set by full bench of the highest court in a Muslim country. It is needless to say that such precedents should be based upon workable Islamic theories of legislation, adjudication and compliance.