CHAPTER 8

CONSENSUS AND DISAGREEMENT

A. THE OLD IDEA OF CONSENSUS

We have seen that the legal theory of the ancient schools of law is dominated by the idea of consensus; that they distinguish between the consensus of all Muslims, both the scholars and the people, on essentials, and the consensus of the scholars on points of detail; that they consider the consensus in both forms as the final argument on all problems, and not subject to error; and that it represents the common denominator of doctrine achieved in each generation, as opposed to individual opinions (ra'y) which make for disagreement.¹

The follower of the ancient schools with whom Shāfi'ī discusses consensus (Tr. IV, 256), defines the scholars whose opinions are authoritative and to be taken into account as those whom the people of every region recognize as their leading lawyers (man naṣabah ahl balad min al-buldan faqīhan), whose opinion they accept and to whose decision they submit.² Small minorities of muftis, he says, must not be taken into account, but only the majority (lā anẓur ilā qalīl al-muftīn wa-anẓur ilal-akthar).

This concept of consensus is common to the Iraqians and the Medinese.³ Both these ancient schools claim the sanction of a consensus of the Companions for the doctrine ascribed to their particular authority among the Companions of the Prophet, thereby projecting the final criterion of their doctrine back to its alleged origins. This consensus of the Companions takes, in the nature of things, the form of a silent approval (ijmā' sukūtī in later terminology).

In Tr. III, 69, Shāfi'ī addresses the Medinese: 'A decision given by 'Umar, according to you, is public and notorious (mashhūr ẓāhir), and can only have proceeded from a consultation with the Companions of the Prophet; therefore his decision, according to you, is equivalent to their opinion or to the opinion of the majority of them.