Theory

1.1 Qarafi (d. 683/1285) and Razi (d. 606/1209) on consensus

Suppose we travelled 200 years back in time, from our starting point of the eighth/14th century, and trusted a statement of the matter by the famed philosopher and jurist, Fakhr al- Din al-Razi (d.

The first set of discussions concerns the window of consensuses and whether it may be, while itself an instance of agreement and reconciliation, the outcome of heated disagree­ment. Definite cases of consensus, Qarafi’s reader will conclude, are bound to occur within a small window of time. The window begins with the Prophet’s death, because an agreement on ‘interpretations’ of his teaching is meaningless in his lifetime.⁴ The window must then be closed when ascertaining the agreement of scholars in the vast swaths of Muslim territories becomes something of an impossible task.⁵ Many of us simply assume that Muslims agree on basic matters, only to learn later that they even disagreed on what was included in the Qur'an itself.⁶ Most genuine consensuses are, in fact, agreements among the companions of the Prophet, when the community of the believers and its active ‘intellects’ of legal and moral guidance were all contained in a small number. The agreement should not be required from the start. It could occur after disagreement, and it would be an acceptable consensus. This leads to what some may consider an unlikely conclusion: that all historical consensuses could have gone the other way. Abu Bakr argued that apostates must be fought, and he was in the minority, and his argument led to a consensus to fight the apostates, but it could have been otherwise.⁷

While Razi’s initial definition of consensus still attributes it to the community’s leaders or those who have the power to bind and loose (ahl al-hall wa-l-‘aqd), Razi’s third enquiry shifts to the agreement of the community of the believers, which reflects, without a warning, that any value assigned to consensus in religious laws must go back to a Qur'anic verse that draws a clear line between the Prophet and his community, on the one hand, and the remainder of the world communities, on the other.

In opposition to what Zarkashi told us, an important caveat is given by Juwayni (d. 478/1085) regarding the subjects where the consensus should be taken seriously: these must be matters of religion (samiyya) as opposed to pure rational or empirical matters. No virtual infallibility should be presumed and ascribed to the body of Muslim societies. Mus­lim societies will entertain prejudices and assumptions that may or may not be correct. Hence, giving credence to views common among Muslims, or even Muslim scholars, in non-religious matters has no basis. The Muslim community, lay and scholarly, is authorita­tive only within the borders of its own code of moral and legal instructions, as opposed to any universal code or scientific realm. This explains Ibn Daqiq al-'Id’s (d. 702/1302) harsh sounding statement against scholars who diverged from the beliefs of all Muslims in matters such as fidelity to the doctrine of bodily resurrection, in an apparent hint at Ibn Rushd’s famous but understudied view.⁹

Why don’t we take this quotation as an excuse to go back to Juwayni’s Burhan and check some of his insights in the subject?

1.2 Juwayni (d. 478/1085)

Two hundred years before Qarafi’s recapitulation of the scattered discussions on juristic con­sensus lived Juwayni, the Persian jurist just quoted.¹⁰ He had reflected independently on many of the mind-bending questions of consensus.

Juwayni’s Burhan also contains a few surprises. The majority of legal theorists, for ex­ample, are reported to say that, in juristic consensus, the character of a jurist matters in deciding whether this jurist may be included or excluded from being considered as part of the authoritative body of jurists.Juwayni thinks this, while appearing to be an explicable position, need not be the case. True, a man of bad character may even not be truthful about reporting his own view (wal-fasiq ghayr musaddaq fma yaqul, wafaq aw khalaf). But the bottom line in these matters is whether the possibility of a reasonable disagreement is found. Cer­tainly freedom (absence of slavery) and maleness don’t matter in considering a scholar to be part of the community of consensus; slave and female jurists have been taken into account in jurists’ discourses and research. Reaching the age of majority is, by contrast, expected of the community of consensus.¹¹

A legal theorist with little interest in the details of the law is another borderline case. Juwayni here wavers. In the end he settles on considering a scholar of deficient knowledge of the detailed law to be included only if this theorist’s objection is expressed, but when the theorist is silent, the consensus carries the requisite authority. The point, in any case, is that any reasonable argument that may weaken the consensus must be taken into account. All those who are qualified to contribute to the discussion must be taken seriously, since one is either a qualified or an unqualified jurist, and there is no third stage in between (laysa bayna man yuqallid wa-bayn man la yuqallid martaba thdlitha).¹²

1.3 Popular and scholarly consensus

In these discussions one notes that the matter of scholarly, as opposed to popular, consensus seems increasingly a question of who the academy of Muslim jurists admits to its member­ship.

Popular consensus is not consistently of a lower rank than scholarly consensus. At least, it is not inferior in certain obvious cases. In fact, popular consensus may be more definitive of what the law is than what one may read in jurists’ books. Muslims agree, for example, that the required daily prayers amount to exactly five, not fewer and not more. If you consult Hanafi law sources, a Muslim individual is obliged to perform six daily prayers — adding an odd-numbered, usually three-unit prayer at the end of the night (the witr prayer) to the fa­miliar five. After the effect of this surprise is over, one might ask: How is it that all Muslims got it wrong and Hanafi jurists right? If one’s stamina allows one to keep on researching, one will learn that an adult Muslim is obliged, but is not obligated, i.e. addressed by a wajib but not a fard, to perform this sixth prayer. We are, then, back to the warm arms of popular lay beliefs, which turned out to be correct after all. The religious law only requires five daily prayers for Muslim adults.

The basis for considering consensus a safe source for the law was, as we learned earlier, a few verses that warn the believers from abandoning the path set by the Prophet and the rest of the believers. The authoritativeness and significance of this textual evidence was disputed. All knew that even when the authority of consensus is established based on the Quranic revelation, it will still require much explanation from ‘reason’ as to how this authority is interpreted in practice. Juwayni, not surprisingly, is certain that there is no Quranic verse that could establish the authority of the community, whether what is meant is the commu­nity of scholars or all believers. Again, all knew also that unbelieving communities do agree on certain matters, and the fact of their consensus points to issues these communities take as authoritative and final.¹³

1.4 Consensus demystified

Abu Bakr b.

There is, I hope one can now see, no mystery in a consensus in what outsiders consider a sacred law. Those qualified to be members of the community of the consensus (ahl al-ijma ‘) may agree after disagreeing and hence create a consensus. If they were to be divided, holding two opinions, and then the whole group that held one of the two views disappears (in a natu­ral disaster) or abandons the religion, the remaining view is a view that enjoys the consensus of the community and is hence binding; if the second view is simply abandoned (without the disappearance of those who held it), the same conclusion is reached.¹⁵ While these are controversial, subtle matters, this understanding of consensus is the most consistent. But what would be the point of this consensus?

This question takes us back to the starting point. Consensus is a useful, rather than re­strictive, quality in a legal system. It provides a few anchors for legal reasoning.

The system, at least in its Sunni side, has built mechanisms to get out of a consensus when it is truly a burden for the scholarly community. One mechanism is more or less the same as distinguishing the new cases, as is done in common law, but it has one more layer of complexity. In common law, precedent is binding. One may only reject precedent within a certain case by showing that the new case is different (distinguishable) from the precedent.

In cases where an early consensus does not address a new legal scenario or case, a Muslim jurist may also distinguish the new from the old, which was the subject of consensus. But one additional layer must be added to this tool that is available to a Muslim jurist. The consensus may have been held over a view that would be said to function in the new conditions but for the fact that it would achieve the opposite purpose for which the consensus came to being. The case of consensus to fight collective apostasy by war under Abu Bakr is a good example. A new consideration of this question, looking into the purpose of the apostasy wars, which was to unify the community, could negate the need to enter into collective wars with apos­tates, even when a broad view of the conditions shows resemblance to the conditions of Abu Bakr’s wars, that is to say, given that applying the old consensus in the new circumstance will lead to a conclusion opposite to the one achieved by the old consensus. We will come back to the apostasy question again when we look at examples of consensus in the modern world.

1.5 Zarkashi (d. 794/1392) and the irreversibility question

With calmer minds, we can now take a final look at old debates on the question of the ‘re­versibility of consensus’, aiming to get a sense of the flavour of these debates.

For Zarkashi, the question of the irreversibility of consensus appeared to be one question among many.¹⁶ In fact, one way of looking at the question is to see it as a false dilemma, a question of terminology. The question looked something like this: If abrogation is specific to revelation, there can be no ‘abrogation’ of consensus. Once a consensus is established, a new consensus may not reverse it. Another way of almost sidestepping the matter was to cling to the idea that ‘consensus’ is there to tell us what cannot be mistaken. If it were possible for that reversal to occur, that would indicate that one of the two instances of consensus was mistaken, which makes it a non-consensus; consensus can only be indicative of that which is true.¹⁷

Zarkashi enumerates four conditions for consensus to become ‘established’ (ma yastaqir bihi al-ijma). These are:

• That it is known that the agreeing generation accepted the doctrine of the consensus both in theory and practice.

• That it is not breached by a disagreement by a participant in the consensus. 'Ali’s re­ported reversal of his view (shared by all during the reign of his two predecessors, 'Umar and 'Uthman) that concubines who bore children for their masters may not be sold ends the consensus on the matter.

• That the consensus generation fully dies out. Ibn 'Abbas is reported to have reversed views to which he conceded under 'Umar, explaining his reversal by his fear of dis­agreeing with 'Umar.

• That a member of a subsequent generation who becomes a competent contemporary of the old generation does not dispute the consensus.

None of these conditions, as many will have assumed, escapes contest, as Zarkashi’s multiple voices attest.¹⁸

The question of the reversibility of consensus is mechanically divided into two questions. The first is whether one generation can reconsider its own consensus. This could not be taken to mean the vacillation that takes place during deliberation, such as the case of waging war against the apostates of Arabia. The second question is about reconsideration by a subsequent generation of an earlier decision. A theological approach assumes, in both cases, that if it were a consensus at all, it would not be reversed. The reason that consensus is authoritative is a religious dictum, which distinguishes consensus from ‘straying’. If this religious dictum were to be seen as true, two consensuses could not clash, because there are not two truths in one and the same matter.¹⁹ But this is also an opening to seeing that a false problem is being solved here. If two ‘ostensible’ consensuses seemed to have been reported, one could not be a genuine consensus. A consensus is reported that the testimony of a slave is allowed in court and another consensus is reported that it is not; a consensus is reported that ‘analogical reasoning’ is permis­sible and Ibn Hazm reports an opposite consensus. Only one of these reports can be correct.²⁰

The outcome of these disagreements on how a consensus may establish an area of the law with forgone, secure conclusions is that there is no guarantee that a consensus may safely es­cape breach in normal circumstances. Once you reflect on the examples ofjuristic consensus, you will realize that the legal scenarios they govern are specific in their circumstance. The point of consensus, in simple language, is providing a stronger guarantee for the views that were shared either by the community of scholars or by the whole population from recon­sideration. Reconsidering the ideas that previous generations are reported to have agreed on is not taken off the table. An argument from consensus, thus, does represent a higher wall to cross or a more firmly locked gate to open, compared with other arguments. The key to opening the gate would be that any new cases must be distinguished from the cases and sce­narios that are reported to have acquired unanimous consent by an earlier generation.

1.6 Is consensus a Sunni affair?

It is no secret that Shi'i scholars think of consensus as Sunni business. If there is such a thing as consensus, for Shi'is, it may be based on an unidentified, yet final and efficient, authority — that of the imam. After all, an agreement is as valuable as those who made it. In other words, the value of consensus is derived from the group that held a doctrine without disagreement. Zaydi and Ja'fari jurists believe that the imam, the only real authority in matters of law, is part of the consensus of the righteous community, which is what lends this consensus value.

Is consensus, then, a Sunni affair? Sunni law constitutes the bulk of Islamic law. This is true by size and quality. Shi'i law retained distinctive features and original solutions to per­tinent problems, which gradually made it capable of reaching areas unknown in the Sunni practice of law.

One must note, however, that Shi'i law functioned within smaller populations and could still be further divided into the Zaydi, Ja'fari and Isma'ili factions. It did not suffer as much from a surplus of legal views as a deficit. It hence had a different task in its pursuit of the standardization of authority. In addressing the potential of mixing authoritative and un- authoritative views, the Shi'i traditions prescribed the ingenious solution of building law around the imitable authority — an individual, rather than a group of scholars. Those abreast of the law, the learned circles, had to figure out among themselves how to negotiate their own disagreement.

Borders between Sunni and Shi'i legal doctrines and views, however, are often more illusory or nominal than real. Erudite Sunni scholars unhappy with the results of Sunni consensuses found the views of Shi'i jurists to come in handy as spoilers of consensus. In some cases, one can find at least one reported view by a scholar against the consensus, even if another view attributed to the same scholar that comports with the consensus is found. Ja'far, for example, is reported to have allowed bequests to be given to inheritors who are assigned standard shares of the inheritance, while the consensus is that only outsiders, such as charities, can benefit from the will, within the limit of 33.3% of the inheritance.

Despite an overall sense that even eccentric Sunni views did not spoil an otherwise widely reported consensus,²¹ Sunni reliance on Shi'i disagreement to argue against consen­sus is an interesting feature of the debates on consensus. This feature, in any case, clearly indicates that Shi'i disagreements did matter for some Sunni jurists and was not simply seen as irrelevant.

All this applies to the later centuries of Islamic law, because in its early centuries, debates in Kufa and Medina were the norm and claimed consensuses were rare. Indeed, one of the ironies of legal research on the question of consensus is that the early centuries were the time to easily ascertain the occurrence of consensus, and some cases of consensus were claimed, but it was in the late centuries that more unverifiable claims of consensus were tossed around. In any case, the early centuries are also a time where distinctions between Sunni and Shi'i would make little sense. Medina was the birthplace of both Ja'fari and Maliki reflections on practical matters, but no one should imagine councils of scholars debating lists of legal doc­trines in the second/eighth century, sifting through which laws are agreed upon and which ones are a matter of disagreement.

It remained true that consensus in Shi'i law was of secondary importance, compared to its Sunni standing. The early Shi'i authorities were few and limited in number. The crisis in Shi'i law was one of deficit of law, as I said, rather than a surplus. When al-'Alama al-Hilli attempted to develop Shi'i legal doctrines in the seventh/13th century, he heavily relied on Sunni sources, such as Ibn Qudama and Nawawi. More recently, Shi'i jurisprudence seemed to walk ahead of Sunni jurisprudence in matters of government and political organization as well as family and market laws. The process of emulation may thus be reversed. This segues to the questions of consensus and modernity.

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