CONSENSUS AND DISAGREEMENT 83

... and you say that his decision given in Medina is the same as their general consensus.'

For the Iraqians, see above, p. 44, and Shāfi'ī's discussion with a Basrian opponent, couched in Medinese terms, in Tr. III, 148 (p. 244). Shāfi'ī: 'There were in Medina some 30,000 Companions of the Prophet, if not more. Yet you are not able to relate the same opinion from perhaps as few as six, nay, you relate opinions from only one or two or three or four, who may disagree or agree, but they mostly disagree: where then is the consensus?' Give an example of what you mean by majority.' Opponent: 'If, for example, five Companions hold one opinion in common, and three hold a contrary opinion, the majority should be followed.' Shāfi'ī: 'This happens only rarely, and if it does happen, are you justified in considering it a consensus, seeing that they disagree?' Opponent: 'Yes, in the sense that the majority agree.' But he concedes that of the rest of the 30,000 nothing is known. Shāfi'ī: 'Do you think, then, that anyone can validly claim consensus on points of detail? And the same applies to the Successors and the generation following the Successors.'

The idea of the general consensus of the community is so natural that the question of foreign influence does not arise. But things are different for the highly organized concept of the 'consensus of the scholars', which consists in the considered opinion of their majority and expresses the 'living tradition' of their school. This concept corresponds to the opinio prudentium of Roman law, the authority of which was stated by the Emperor Severus in the following terms: 'In ambiguitatibus quae ex legibus proficiscuntur, consuetudinem aut rerum perpetuo similiter iudicatarum auctoritatem vim legis obtinere debere.'² Goldziher has suggested an influence of Roman on Muhammadan law in this case.³ This concept may well have been transmitted to the Arabs by the schools of rhetoric.⁴

B. THE MEDINESE AND CONSENSUS

One feature in which the Medinese idea of consensus differs from the Iraqian is that the Medinese restrict themselves to a local consensus, that is, count only the authorities in Medina. We have come across several passages which show this provin-