Origins of Muhammadan Jurisprudence

94 CONSENSUS AND DISAGREEMENT

scholars merges into the consensus of the Muslims at large and serves to eliminate stray opinions by showing them to be below the general scholarly standard. Shāfi'ī says on pp. 309 f.: 'If someone were to take a sunna of the Prophet or a doctrine unanimously acknowledged by the scholars in general, would he be justified in adducing his own disagreement as proof [that the point is contested] or would he be simply an ignoramus who has still to learn? If the first were the case, everyone might invalidate any rule without reference to a sunna or to a disagreement among the scholars.' Shāfi'īgives as an example the paternity of a child: whosoever does not consider it cancelled by the procedure of li'an diverges from the sunna of the Prophet, and Shāfi'ī knows of no disagreement among the Muslims about it. These passages, which presuppose Shāfi'ī's final concept of the consensus of the community at large, seem to be late.¹

Umm is composite, containing passages of various dates and partly revised. Both the old and the new idea of consensus are expressed in it.

F. THE LATER DOCTRINE OF CONSENSUS

The classical theory of consensus falls outside the scope of this inquiry.² From what has been said, it is clear that the classical theory represents essentially a return to the old concept; in other words, Shāfi'ī's rejection in principle of the consensus of the scholars, and his restriction of consensus to the unanimous doctrine of the community at large, were unsuccessful.³ But the later doctrine does not simply continue the old concept, it accepts Shāfi'ī's identification of sunna with the contents of traditions from the Prophet and covers it with the authority of the consensus of the scholars. So the main result of Shāfi'ī's break with the principle of 'living tradition' became itself part of the 'living tradition' at a later stage. The price that had to be paid for this recognition was that the extent to which traditions from the Prophet were in fact accepted as a foundation of law was in future to be determined by consensus; and Shāfi'ī's