12 — Consensus
|Consensus is the agreement of a generation of scholars concerning the legal value of an event. By scholars we mean jurists, and by event we mean a legal event.1 The consensus of this community, and no other, is an authoritative proof, because the Prophet (peace be upon him) has said “my community does not agree upon an error,” so revelation has affirmed the infallibility of this community. Consensus is an authoritative proof for the following generation, and for every generation.||وأما الإجماع فهو اتفاق علماء أهل العصر على حكم الحادثة، ونعني بالعلماء الفقهاء، ونعني2 بالحادثة الحادثة الشرعية. وإجماع هذه الأمة حجة دون غيرها لقوله عليه وسلام لا تجتمع أمتي على ضلالة،3 والشرع ورد بعصمة هذه الأمة. والإجماع حجة على العصر4 الثاني وفي أي عصر كان.5|
|The correct view is that the probative authority of consensus is not conditional upon the passing of the generation in which it is reached. If we made it conditional on the passing of the generation, then one would take into consideration the dissenting statement of someone who was born during their lifetime and studied law and became one of the people of diligent inquiry, and they could then revoke the agreement they had reached.||ولا يشترط انقراض العصر على الصحيح، فإن قلنا انقراض العصر شرط يُعتبر6 قول من ولد في حياتهم وتفقه وصار من أهل الاجتهاد، ولهم أن يرجعوا عن ذلك.|
|Valid consensus can be established by the scholars’ words, or by their actions, or by the words or actions of only some of them if those words or actions are disseminated and the others remain silent about them.||والإجماع يصح بقولهم وفعلهم7 وبقول البعض وفعل8 البعض وانتشار ذلك وسكوت الباقين عنه.|
|The saying of a single Companion9 is not an authoritative proof, according to al-Shāfiʿī’s new opinion;10 according to his old opinion it is an authoritative proof.||وقول الواحد من الصحابة ليس بحجة11 في12 القول الجديد، وفي القديم حجة.|
Giving interpretation the finality of revelation
If there is any part of legal theory that binds interpreters to the legal status quo, it is the concept of consensus. When al‑Juwaynī defines consensus as “the agreement of a generation of scholars concerning the legal value of an event,” and then declares that this agreement “is an authoritative proof for the following generation and for every generation,” he is saying that when scholars come to agreement on a point of law, interpretation is over. The law is now set in stone, and has itself become a proof, just like a revealed text. From that point on, no jurist can contravene that point of law, even if he finds a clear text that opposes it. For example, the Prophet clearly forbade selling anything that one does not already have in one’s possession, but the jurists nevertheless agreed that it is permissible to manufacture goods that a customer orders and agrees to pay for, even though this means entering into a contract of sale before the object of the sale even exists. The consensus of the jurists has trumped the Prophet’s words, and no one today can question that.
This makes consensus seem like an independent source of law in its own right, alongside and perhaps even superior to revelation. In the example of manufacturing on order, the jurists’ consensus seems to act as a second text that particularizes the Prophet’s words, showing that he meant to forbid the sale of only some kinds of property not in one’s possession. Perhaps he meant to forbid the speculative trading of commodities futures, in which one sells wheat or oil that one does not yet own in the hope of being able to buy it more cheaply before the date on which one has agreed to deliver the goods. Perhaps the Prophet meant only to forbid such speculation, which can hurt the stability of the marketplace, but never intended to forbid the beneficial practice of manufacturing on order. The fact that people practiced manufacturing on order, and that the jurists approved of it, effectively particularizes the Prophet’s words, and tells us definitively what the law should be. Their consensus acts as a third source of law that modifies and trumps the Qurʾān and ḥadīth, and states the law clearly and decisively for all future generations.
Accordingly, consensus is usually listed as the third source of law, after the Qurʾān and Sunna and before reasoning by analogy. Very few legal theorists, however, were willing to say that consensus was actually a form of revelation. As al‑Juwaynī mentions, the Prophet did declare that his community “would not agree upon an error,” and this was understood by most legal theorists as an affirmation that the community was infallible when it agreed on a point of law (and perhaps on other matters as well, though al‑Juwaynī limits his claim to “legal events,” meaning human actions that can be assigned legal values). But most legal theorists regarded that infallibility as interpretive, not declarative or legislative. Most argued that the jurists could not agree on a legal value that they just pulled out of the air; they had to have some evidentiary basis for believing that legal value to be correct. The jurists must have had some evidence, other than their own opinion, that the Prophet did not intend to forbid manufacturing on order. Perhaps they remembered a ḥadīth that particularized his blanket prohibition, but they did not bother to preserve that ḥadīth since in their day everyone knew that manufacturing on order was permissible. Or perhaps they remembered that manufacturing on order was practiced during the Prophet’s lifetime, and reasoned that since he did not specifically object to it, his silence amounted to “acquiescence” (which we have seen is a kind of Sunna that makes things permissible), and this bit of silent Sunna particularized his verbal prohibition. Of course, some later interpreter might want to argue that the Prophet’s prohibition was a condemnation of what was practiced in his time, and that he therefore did not acquiesce to it. But the consensus of the early jurists ruled out this interpretation, and settled the question permanently, on the basis of some evidence that is no longer known to us.
In fact, the evidence undergirding consensus was almost always easy to determine. All scholars agreed on the obligatory nature of the five daily prayers, and on the forbidden nature of sexual immorality, and on a thousand other legal values that no Muslim would dispute. But the textual evidence for these points was generally well known, so the existence of a consensus on these points was redundant. In such cases consensus did not really function as a source of law, and was not needed by the interpreter. There were some points of consensus, however, for which it was hard to divine the underlying evidence, and it was really on these points that the doctrine of consensus seemed to make a substantive contribution to the law. Everyone agreed, for instance, that the practice of collecting a tax (called kharāj) on the rich agricultural land of Iraq, which was already well established before Muslims conquered the region, should be continued, even though this practice was unknown in Arabia and consequently was not supported by either the Qurʾān or the Prophet’s Sunna. Indeed, it might have seemed reasonable to suppose that the agricultural tax prescribed by the Prophet (the tenth, ʿushr) was revealed as an Islamic alternative that should supersede the local custom of Iraq. But jurists settled on the validity of the kharāj—much to the satisfaction of the caliphs, who relied heavily on the immense revenue it provided. A few legal theorists argued that this was an example in which the consensus of scholars was itself God’s way of revealing a new law, since it clearly was not based on anything revealed through the Prophet. But others argued that it must have been derived from the Qurʾān by the caliph ʿUmar by means of diligent inquiry, and thus did in fact have an evidentiary basis in revelation. This too, therefore, was an interpretive consensus, not a declarative or legislative one. Only God can legislate, and he does so only through his Prophet, not through his community.
Al‑Juwaynī does not mention this debate in his Waraqāt, but the fact that he places consensus in the second half of his treatise, where he describes the process of interpretation, suggests that he regarded consensus as a type of non-revealed evidence used in interpretation, not as a kind of revelation in its own right. In his Burhān al‑Juwaynī describes consensus as a revealed (samʿī, heard) kind of evidence that ultimately expresses God’s speech, just like the Qurʾān and ḥadīth; but this does not seem to mean that he regards it as a form of revelation or divine speech in its own right, because he also affirms (in his Talkhīṣ) that consensus can be reached by jurists relying on the evidence of analogy, and this shows that he regards consensus as interpretive. The very fact that he restricts consensus to jurists, rather than saying that the opinions of all Muslims count toward consensus, likewise shows that he regards consensus as based on diligent inquiry, since, as you recall, he said legal science was all a matter of diligent inquiry, and he will insist below that jurists must be competent in the methods of diligent inquiry. Some theorists of the Shāfiʿī school, including al‑Juwaynī’s famous student al‑Ghazālī, were somewhat wary of consensus based on analogy or on other forms of diligent inquiry. Some Ẓāhirī and Shīʿī theorists, as well as the famous Qurʾānic interpreter al‑Ṭabarī (d. 923), denied that consensus could be based on analogy or diligent inquiry at all, insisting instead that consensus have a clear textual basis (which, of course, would make the consensus redundant). Some argued that consensus on a point of law that was arrived at by diligent inquiry effectively bestowed certainty on reasoning that was intrinsically uncertain. For most theorists, and apparently for al‑Juwaynī as well, that was precisely the value of consensus: it gave certainty, or at least undisputable authority, where there had been uncertainty and disagreement.
Consensus, then, for al‑Juwaynī and most classical theorists, is like a revealed textual source in its authoritativeness, but it is very deliberately thought of as a part of the interpretive tradition. It has not added anything to revelation, but it has added a degree of certainty and authority to what might otherwise have been an uncertain and debatable interpretation. It is a means whereby the community of jurists can choose between several possible interpretations of the evidence, and thereby prescribe how all future jurists should interpret the evidence. In other words, consensus is a way of granting authority to the scholarly community’s choice of one particular interpretation over others. It is significant mainly when that interpretation is not obvious, or even goes against the known revealed evidence (as in the cases of kharāj and manufacturing on order). The authority that consensus gives to scholars is purely interpretive, not legislative; but it is nevertheless strong enough that it can effectively trump revelation itself, through interpretive moves that do not have to be disclosed, resting on evidence that does not have to be preserved.
A power grab?
For the jurists to claim that degree of authority was a stunning arrogation of legislative power. Such authority could not simply be claimed, but had to be justified on the basis of revelation. Numerous verses from the Qurʾān were put forward to support the idea of consensus, including Q 2:143, 3:102, 3:109, 4:59, 4:115, 7:181, 9:16, 31:15, and 42:10. Many legal theorists found these proof texts unsatisfactory, however, so greater reliance was placed on ḥadīth from the Prophet, including above all the one quoted by al‑Juwaynī, “my community does not (or will not) agree upon an error.” This was admittedly a relatively weak ḥadīth, by the standards of ḥadīth criticism (which will be introduced in the next chapter), especially for supporting such a momentous claim of authority. Some have thought that these words of the Prophet were intended not to declare the infallibility of the community as a whole, but only to reassure Muslims that there would always remain at least a few of them who would believe the truth, no matter how far astray other Muslims went. Nevertheless, most Sunnī legal theorists, up until the modern period, have argued that taken together the evidence in favor of the authority of consensus is overwhelming. The very fact that so many accepted the weak ḥadīth evidence in itself helped to guarantee its authenticity. Ultimately consensus was upheld by … consensus.
The only legal theorists who rejected or severely limited the authority of consensus were those who were opposed to the authority of the Sunnī scholars who were claiming it. This included troublemakers like the Muʿtazilī al‑Naẓẓām (d. 836) and others such as the Ẓāhiriyya who rejected the whole idea of a comprehensive legal system constructed by specialists. It also included early Shīʿa, who preferred to vest interpretive authority in an infallible Imam than in a supposedly infallible community of scholars. Indeed one scholar, Devin Stewart, has argued that excluding the Shīʿa was a major motive for Sunnī scholars to develop the formal doctrine of consensus. It legitimated their decision to ignore the legal opinions of Shīʿī jurists: instead of taking their views into account, they could simply accuse them of departing from the consensus of (the rest of) the community. Notice that al‑Juwaynī is careful to specify that consensus only has to include the scholars of “this community;” this allows an interpreter, in deciding whether a consensus exists on a certain point of law, to discount not only the views of non-Muslims, but also the views of Muslims who are considered to have stepped outside the bounds of the community by ignoring its consensus—a circular definition that in effect says “the agreement of those who agree with us is authoritative.” This was particularly useful for excluding dissenting groups such as the Shīʿa. Even so, many Shīʿī theorists eventually accepted the doctrine of consensus at least nominally, in that until the disappearance of the last Imam, the consensus of the community was infallible because by definition it had to include the opinion of the Imam, which was itself infallible. Other opponents of consensus died out, as the mainstream Sunnī vision of a comprehensive legal system grounded in revealed texts and elaborated by specialists won widespread approval among Sunnīs.
The notion of consensus did not begin as such a strong claim of scholarly authority. It started out as a vague sense of “what the community thinks proper,” a sense of what was obviously normative among the Muslim community as a whole, or even in a local area. Such loose consensus was scarcely even articulated unless it was threatened by some proposed innovation. It was appealed to, for instance, to reject ḥadīth that people deemed unacceptable: they cannot be authentic because they go against “the consensus of the community.” (We will see in the next chapter that this was early on a very important factor in sorting out which ḥadīth were sound and which were weak.) When al‑Shāfiʿī (d. 820) referred to consensus in his famous Risāla, he did not yet mean the agreement of scholars on the legal value of an act, but merely the widespread acceptance of a particular practice. He did not regard such consensus as a source of law carrying the authority of revelation, but merely as one kind of evidence among others indicating which interpretation of revelation a scholar should prefer.
In the century or two following al‑Shāfiʿī, however, as legal theory developed into a formal discipline, the notion of consensus was defined more narrowly as scholarly agreement on a point of law, and it was given the effective status of an independent source of law, and bolstered with ḥadīth that were discovered (or perhaps fabricated) to support it. By the time of the great Ḥanbalī reformer Ibn Taymiyya (d. 1328), consensus had taken on such a life of its own, and had come to be treated so much like a revealed text, that he could complain that consensus had become the real starting point of diligent inquiry, and the real basis of the law, while the Qurʾān and ḥadīth were no longer anything but the symbolic or theoretical basis of the law, easily disregarded or overridden by the jurists. As al‑Juwaynī’s student al‑Ghazālī put it, “consensus was the greater part of the basis of religion.” The general idea of communal consensus had become, at the hands of the jurists, a claim that they alone held the legal authority of revelation itself. When the jurists could find ready textual support, they did not need consensus; its real role was to grant them the authority to declare against the plain meaning of scripture when that might seem necessary.
This may sound like a raw power grab, but it is perhaps not as unreasonable or self-serving as it sounds. Indeed it is hard to imagine how an interpretive community could avoid claiming such authority. To interpret revelation is to say what it means, and that means claiming that one’s own words are the very meaning God intended. To interpret is, in effect, to substitute one’s own words for those of revelation, or to give one’s own words the status of revelation—to make them functionally a source of law in their own right. To claim interpretive authority is, in effect, to claim Prophetic authority.
Perhaps such a claim is not inevitable, or at least not inevitably authoritarian. Khaled Abou El Fadl has recently offered a probing analysis of the concept of interpretive authority, and has argued that to identify one’s own words as the meaning of revelation is an abusive claim of authority—what he calls authoritarianism. Nevertheless, he argues, it is possible to offer an interpretation that has persuasive authority by virtue of one’s competence in diligent inquiry, without claiming any kind of finality for that interpretation. If the whole community of scholars viewed even their wholehearted agreement on an interpretation as tentative, perhaps they could claim that it has tentative and practical authority over others without claiming that it has the final and absolute authority of revelation. And some legal theorists did in fact qualify the authority of consensus, saying that it provides only probable knowledge, not certainty. But it is hard to imagine how interpreters the world over could regard their agreed-upon interpretation as tentative. If I think I am right, and everyone else agrees with me, and no one ever questions me, it is unlikely that I will question myself; I will naturally think that my interpretation is obvious and indisputable. Such is the nature of group-think: it cannot help but regard itself as correct. Only when one encounters disagreement does it even occur to one to doubt one’s convictions. It is entirely natural, therefore, that scholars should regard their consensus as an infallible interpretation, so obvious and uncontestable that it is hard to distinguish from revelation itself. Such a claim of final interpretive authority by a religious institution is hardly exceptional or surprising; such claims are to be found in many and perhaps all religious traditions, and although they can certainly be used for nefarious purposes, they can also play an important role in preserving a sense of communal unity and identity.
Al-Juwaynī makes it easy for scholars to claim the authority of consensus for their views
What is most noteworthy about al‑Juwaynī’s definitions and claims about consensus is that they tend to make it as easy as possible to reach consensus (or to claim that is has been reached), and thus maximize the usefulness of consensus as a means of claiming interpretive authority.
First of all, consensus can be reached in any generation. Some Ẓāhirī and other legal theorists acknowledged the authoritativeness only of the consensus of the first generation of Muslims, the Prophet’s Companions, who were widely regarded by Sunnīs as profoundly in tune with the Prophet’s Sunna. Many Sunnīs regarded even the opinion of a single Companion as a source of law in its own right; al‑Shāfiʿī had held this view during the early part of his career, before he developed his thesis that law should come only from the Qurʾān and the Prophet’s Sunna. That later thesis, for which he is mainly remembered, was called his “new opinion,” and that is what al‑Juwaynī is referring to when he says at the very end of this chapter that the saying of a single Companion is not a proof “according to the new opinion.” By citing only this second view, al‑Juwaynī implies that he agrees with it. To his mind, then, Companions have no special status: their individual opinions are not sources of law, nor is their consensus any more binding than anyone else’s, except in the sense that they came first and therefore were able to settle many questions before later generations could offer their interpretations.
It is not being a Companion that matters; it is being a scholar, and more specifically a jurist. By specifying jurists, al‑Juwaynī is first of all excluding lay Muslims. The early notion of consensus took account of the views of the Muslim population as a whole, but al‑Juwaynī specifically excludes laymen, and says below (in Chapter 17) that the layman can only follow the interpretations and rules of a qualified jurist. Secondly, al‑Juwaynī is also entering into a debate about whether other types of scholars—especially legal theorists—could contribute to or dissent from the consensus of jurists. There was a bit of a tiff between those legal theorists who looked down on “mere jurists” who simply knew lots of legal rules without understanding legal theory, and those jurists who thought such legal theorists were just high-brow theory-mongers. Al‑Juwaynī thinks both kinds of knowledge are necessary: if all one knows is theory, then one’s opinion doesn’t mean much—it can’t count for or against a consensus. But as he will say in chapter 17, every jurist needs to know his legal theory so that he can do his own diligent inquiry for himself, rather than just memorizing and following the opinions of others. So al‑Juwaynī makes the circle of scholars needed for a consensus as small as possible: it includes only those who know both law and legal theory. That keeps authority in the hands of a few, and makes it all the easier for them to reach (or claim to have reached) a consensus.
By limiting consensus to “this community and no other,” al‑Juwaynī excludes not only non-Muslim scholars, but also those Muslim scholars whose opinions diverge so seriously from the majority that they can be considered to have left the community. This allows him to claim consensus even when there are jurists of other sects, such as the Shīʿa, who dissent. This too, therefore, makes consensus easier to reach and to claim.
Since it is not limited to Companions, consensus can be reached at any time, in any generation, and immediately becomes binding on subsequent generations. A few legal theorists, including Ibn Ḥanbal (d. 855), after whom the Ḥanbaliyya are named, had argued that in order to determine that every jurist in a given generation had had sufficient time to learn of the view on which consensus was being formed, and to consider it at length and reach his own decision, and to change his mind if he discovered his original reasoning was flawed, it should be necessary for that entire generation of jurists to pass away, without any of them having retracted their agreement, before a definitive consensus could be said to have been reached. This, however, seems like a requirement designed to doom the very feasibility of consensus, as al‑Juwaynī points out: how would one ever know that one generation had ended and another had begun? What if someone born before all the original group died adopted a dissenting view? The only way to ever close the books on a consensus is to consider it definitive the moment it is reached.
But for that matter, how would one ever know a consensus had been reached at all? Perhaps it was still conceivable, in the generation of the Companions, that all the leading Muslims could know of each other and of their opinions on a point of law, but how was that even conceivable in al‑Juwaynī’s day, when the Muslim world extended from Spain to India, yet travel and communication were still painfully slow? This was yet another objection raised by critics of the doctrine of consensus.
A few scholars, including al‑Juwaynī’s own father Abū Muḥammad al‑Juwaynī (d. 1046), solved this problem by requiring only that a majority of scholars come to agreement. That eliminated the possibility that some little known scholar in some remote town somewhere might hold a dissenting view that no one is aware of. But it also undermined what little support the doctrine of consensus received from ḥadīth: the Prophet had said the community as a whole could not err, but he had never said the majority would always be right.
Al‑Juwaynī’s solution to this problem was neater, and came to be widely accepted: he simply argued that “silence means consent,” so that even if only a few jurists positively express an opinion, so long as no dissenting opinion is known, the remaining scholars can be presumed to have agreed. This makes it possible to claim the authority of revelation for an interpretation simply by saying (as jurists often did) that “I know of no disagreement on this point.”
Moreover, because al‑Juwaynī allowed that an opinion could be agreed upon without being expressed at all, if jurists merely acted on that opinion, it was possible to claim that a consensus existed on a point of law that had never even been discussed before. Something that everyone did and no one ever questioned could, if challenged, be justified by appeal to consensus, even though it had no specific basis in revelation. Alternatively, if some new practice was introduced that had been previously unknown in the Muslim world (as when tomatoes and coffee were introduced by European colonial powers), a jurist could claim that there was a consensus against it, simply by observing that previous generations of scholars had not practiced it. Consensus, as defined by al‑Juwaynī, could easily be used to validate the status quo, or the presuppositions of the scholarly class.
A constrictive device or a tool for debate?
This makes al‑Juwaynī’s doctrine of consensus look like a highly conservative device: it lends the authority of divine revelation to an interpretive tradition, and thus restrains new interpretation from reaching beyond the presuppositions and prejudices of that tradition. It makes the record of previous interpretations part of the intertextual world within which new interpretation must take place. Some legal theorists even said that interpretation must be limited to the range of views expressed by previous generations: if one generation disagreed on a point of law, but offered only two opposing answers, subsequent generations were limited to supporting either of those two answers; they could never revisit the evidence and come up with a third answer. Al‑Juwaynī does not mention this principle, but what he says implies it: a disagreement with only two sides is implicitly a consensus that only those two sides are legitimate. This means that in every area of the law, no matter how much disagreement there is, the range of allowable interpretations can only be narrowed as time goes on; unless one is answering a completely new question that has never been addressed before, novel interpretations are never an option. Like quicksand, the interpretive tradition gradually constricts the interpreter’s range of motion.
To put this in modern terms, al‑Juwaynī’s doctrine of consensus is a formal recognition that a reader’s presuppositions do and should govern the meaning of a text. But for al‑Juwaynī this does not imply that new readers can discover new meanings, because the reader’s presuppositions are supposed to be fixed. The doctrine of consensus states that the set of presuppositions with which the juristic tradition has approached the texts of revelation should remain fixed, and that interpretation must always remain within the bounds set by that interpretive tradition. The notion of consensus freezes or constricts interpretation by making both the premises and the conclusions of past interpretations part of the authoritative interpretive framework for all new interpretation.
It can be argued, however, that the way the doctrine of consensus is actually used is not intrinsically conservative. In principle, consensus occurs at some point in time and then governs all future debate. In fact, however, as the legal theorists themselves realized, it is never possible to know when or even whether a consensus has actually occurred; it is only possible to claim that a consensus has occurred by saying that one “knows of no disagreement on this point.” Such a claim, of course, is never made about a point on which there is no disagreement, because points of law on which everyone agrees do not have to be proven. The practice of collecting kharāj, for example, was not validated by a claim of consensus until someone challenged it. To take a modern example, it was not until some Muslim women started clamoring for the right to lead the prayers of mixed groups of men and women, that scholars claimed there had always been a consensus against their doing so. Even then, the claim of consensus was only a claim, reflecting the scholars’ opinion that such a thing was unthinkable or undesirable. A search of classical legal opinions, conducted by someone in favor of women leading mixed prayers, easily turned up examples of classical jurists (mainly in the Ḥanafī school) who had in fact allowed women to lead mixed-gender congregations in prayer. But that did not stop their opponents from saying that this matter was settled by consensus. The contrary Ḥanafī opinions could simply be regarded as “outside the consensus” and therefore unworthy of consideration.
Consensus is never a fact; it can only be a rhetorical claim. Al‑Juwaynī realized that unanimity can never be verified, and therefore defined consensus in such a way that in order to claim it had occurred, one did not have to establish the actual occurrence of agreement, one only had to be unaware of prior disagreement. As long as one can point to a past point in time when one knows of no one who disagreed with one’s own opinion, one can say that one’s opinion is established by consensus and is therefore unquestionable, and that one’s present opponent’s view is “outside the consensus.”
Consensus, therefore, is neither a source of law nor a method that actually guides interpretation. Past consensus cannot guide present interpretation because it does not actually exist: there is no record, anywhere, for any point of law, of the historical occurrence of an actual consensus; there are only claims, all over the place and on numerous points of law, that consensus has occurred. Ironically, those claims are only made on points that are actually in dispute.
Arguably, it is the illusory language of the legal theorists, which speaks of consensus as though it were a historical event, that generates most of the technical disputes about it—who counts in its formation, whether they must die before it takes effect, whether they must all express their agreement verbally, whether it produces certainty or only probable knowledge, whether it must be based on revelation or can be based on human reasoning, and even what verses and ḥadīth best prove its authority. These questions all presume that consensus is to be imagined as a thing out there in the world that exists independently of the interpreter, and can be used by him as a source of law. The very idea of such a historical event is so implausible that simply to conceive of it immediately raises all kinds of conceptual problems, which prompt drawn-out arguments to establish how it could possibility occur, and how it could be known to have occurred.
Once we realize, however, that consensus is only ever a rhetorical claim to be made in the heat of a dispute, these questions seem surreal: they are an exercise in defining something that can only be imagined or claimed to have happened. They are not pointless arguments, however, because they provide tools for criticizing one’s opponent’s claims of consensus, and for defending one’s own claims against the refutations of others: they allow one to assert one’s own position by saying “everyone agrees with me on this” without having to provide evidence of positive expressions of agreement, even while refuting one’s opponent’s claim by saying that he has neglected a dissenting opinion, or that there cannot be consensus on his view because it conflicts with a clear text that is stronger than his mere claim of consensus.
Can consensus be progressive?
In fact, then, consensus is not a matter of past agreement shaping present interpretation, but of present interpretations on which there is disagreement being defended with claims about the past. This suggests that consensus need not always be a conservative tool for defending the status quo. Might it be used to support a novel interpretation?
Some modern thinkers have in fact argued just that. The nineteenth-century Indian modernist Sayyid Ahmad Khan argued that consensus should not be a way of hallowing old customs, but rather a way of reaching agreement on a new solution to a current problem, based on fresh application of the Qurʾān and Sunna. He and several others, including the Egyptian modernist Muḥammad ʿAbduh (d. 1905), proposed that consensus should not be binding forever, but should be revisable in each generation in light of new circumstances. This trend in modern thought regards consensus not as a source of law, or as a means of constricting the inherited framework within which interpretation takes place, but as a practical mechanism whereby Muslims can maintain unity by agreeing to abide by fallible and temporary but pragmatic solutions. Some modernists envisioned this taking place among a body of scholars and experts who represent the people, possibly in the context of a democratically elected legislative assembly. By making consensus more dependent on the consent of the community as a whole, rather than just the opinions of qualified jurists, these modernists seek to revive the Qurʾānic and Islamic notion of “consultation” (shūra), which they regard as the true spirit of consensus and the forerunner of the modern notion of democratic participation.
This modern vision of consensus is a far cry from the classical theory laid out by al‑Juwaynī: it is impermanent, it has a concrete institutional form, and it is supposed to reflect the convictions of the community as a whole, not just the jurists. Al‑Juwaynī would regard this as an entirely new proposal, dignified with the title of consensus but having no relationship to the classical concept that is called by that name. But this modern conception of consensus is not actually as novel as it seems. We have seen that early on consensus was understood to be the broad agreement of the community as a whole, or of a local community, including laypeople as well as scholars. And not all theorists have insisted that consensus be unchangeable. A Ḥanafī contemporary of al‑Juwaynī, known as al‑Bazdawī (d. 1089), argued that as long as a consensus was based on an uncertain interpretation (rather than on an explicit text, in which case the consensus was redundant anyway), it could be abrogated by a new consensus if a later generation agreed that a different interpretation was better suited to its circumstances. This was so, al‑Bazdawī argued, because what societies need changes from time to time, and the law can change accordingly—even after the Prophet’s death—and this can be discovered through consensus.
Al‑Bazdawī’s theory recognizes the fact that Islamic law has not been a strictly conservative tradition that prohibits the development of new answers to old questions. We saw in Chapter 7, for example, that women commonly went to mosques during the Prophet’s time, and that the Prophet himself affirmed their right to do so, but that later on jurists agreed that husbands had the right to prevent their wives from going out to the mosque. Al-Shāfiʿī appealed to this consensus, and also to the ambiguity of language, to justify his departure from the plain sense of the Prophet’s words: “the mosques of God,” he said, sounds general but actually refers only to the mosque in Mecca. Ḥanafī theorists, however, were more ready to admit that the law had simply been changed to suit new circumstances. Al-Aydīnī (d. 1704) stated forthrightly that the jurists had decided to depart from the Prophet’s instructions because circumstances had changed and women’s presence in the mosque now had “deleterious consequences” for society. He justified this change by articulating a legal-theoretical principle: the legal value of an act remains in force as long as the reason for that legal value continues to exist, but if it begins to produce deleterious consequences then the legal value should change.13 Al‑Bazdawī’s idea that consensus can change with the times is a similar principle, a recognition and justification of the fact that the tradition of interpretation has evolved in new directions over time, and should continue to do so.
This may not be the way al‑Juwaynī imagined consensus working, but it is actually a more realistic picture of how it has functioned. If consensus has never been a historical fact of unanimity that limits future interpretation, but instead has never been more than a claim of past unanimity that interpreters have made in order to support disputed opinions, and those opinions have sometimes represented new developments in the content of the law (as al‑Shāfiʿī’s claim of consensus about husbands’ control over wives supported a change that had occurred in women’s freedom of movement), then consensus is not a purely conservative device. It has been, in fact, a justification for change as well as for the status quo.
One important qualification, however, must be made: consensus as defined by al‑Juwaynī cannot be used to justify a radical new idea advanced by an individual jurist. It can be used to sanction opinions only in retrospect, and it can only sanction opinions shared by a large enough segment of the Muslim community that those who do share it will be able to think of themselves as representing mainstream Islam. When a new idea is first proposed, or is still shared only by a self-conscious minority, not even those advancing the idea will find a claim of consensus plausible.
Once an idea comes to be taken somewhat for granted by a majority or at least a local part of the Muslim community, however, a claim of consensus can have rhetorical force. That is why Muslims can claim, for example, that Islam allows only defensive warfare, even though many Muslims long have and still do believe otherwise: aversion to the concept of aggressive religious warfare has come to be so widely shared that those who express no opinion on the matter can be presumed to agree, and those who still explicitly support aggressive forms of jihād can be dismissed as “outside the consensus,” and can even be regarded as illegitimate Muslims who have “hijacked” the faith.
Consensus makes interpretation communal
Consensus thus remains what it always has been: a rhetorical claim that can be used to discredit an opponent’s position in a dispute, and give one’s own opinion the authority of revelation, precisely by claiming that the question is not open to dispute but has already been settled. It can be used either for conservative or progressive ends. Before the colonial era it may have played a largely conservative role, simply because the scholarly tradition was regarded as authoritative by large numbers of Muslims, and it tended to be a socially conservative tradition. In the modern era, as the institutional and perceived authority of the scholarly class has declined, and as social norms have become subject to more rapid change, scholars’ conservative claims of consensus have lost some of their rhetorical force. As popular opinion shifts, the authority ascribed to conservative authorities dwindles, and their claims of consensus become less meaningful, while those scholars—both traditionally trained and otherwise—who advance ideas more consonant with new trends in popular opinion gain more and more persuasive authority. It is only a matter of time before their ideas come to be so taken for granted by enough Muslims that they too will be able to claim consensus—as is already happening with the doctrine of defensive jihād.
Because the effective authority of a scholar is determined largely by his or her acceptance among lay Muslims, it is really the prevailing opinion of the whole community that ultimately controls the law, and decides which interpretations are reasonable and which are not. Those scholars whose interpretations the Muslim community in general deems unreasonable or unacceptable will be ignored or even declared heretical, and the notion of consensus provides a formal justification for such dismissal. This is basically the same mechanism as classical consensus. Al‑Juwaynī may have imagined consensus as a historical event by which scholars permanently fix the law, and he expected laypeople to follow that tradition as articulated by jurists. But by the way he defined consensus, he actually made it a tool that can serve—and has served—to defend either the status quo or change. Consensus as he defines it does not really limit what the law can be, any more than al‑Juwaynī’s rules for interpreting language do. All it does is to ensure that interpretation can only be given the status of revelation if it remains accountable to a community of interpretation. For better or for worse, in stability or in change, interpretation is never a free individual choice, but always partly a communal one. That is the most momentous consequence of al‑Juwaynī’s theory of consensus.
Ahmad Hasan, The Doctrine of Ijmā‘ in Islam (Islamabad: Islamic Research Institute, n.d.) gives a detailed presentation of the disputes about consensus among classical theorists, framed by Hasan’s own very different vision of how consensus should operate as a gradual mechanism of popular sovereignty.
- The event is a legally relevant act, and what is agreed upon is its legal value.
- Spr. 601 omits نعني .
- BM 3093 has instead الضلالة .
- Lbg. 256 has instead أهل العصر , but this is likely a mistaken repetition, unique to this ms, of a phrase used shortly before. When Ibn al‑Firkāḥ explicitly quotes the matn again a few lines later, he omits أهل .
Ibn al‑Firkāḥ finds in his copies of the Waraqāt three variants of this sentence, which he presents in this order:
1) والإجماع حجة على العصر الثاني وفي أي عصر كان .
2) والإجماع حجة في العصر الثاني وفي أي عصر كان .
3) والإجماع حجة على العصر الثاني وأي عصر كان .
I suspect that version 1 was probably al‑Juwaynī’s original, because the other two can easily be explained as attempts to eliminate its puzzling conjunction between ʿalā (which seems to indicate which generations are bound by a consensus) and fī (which seems to indicate in which generations a binding consensus can be reached). Version 3 (which is also reflected in Spr. 601) says simply that a consensus in one generation is binding on the next generation and all others, but Ibn al‑Firkāḥ finds this too obvious to be worth stating. Ibn al‑Firkāḥ understands version 2 as an affirmation that any generation from the Companions onward can reach a binding consensus. Ibn al‑Firkāḥ clearly prefers this option, and makes it the basis of his commentary, because it constitutes a repudiation of the minority views that only the Companions, or the Companions and their immediate Successors, could reach a binding consensus. The second half of version 1 can be understood to affirm the same thing, but the only significance Ibn al‑Firkāḥ can find in the first half of version 1 is a premonition of what al‑Juwaynī says later about the consensus of one generation being binding on younger scholars who come of age before the passing of the original generation. Nevertheless, Ibn al‑Firkāḥ follows version 1 in his initial quotation of the matn, because most of his manuscripts have the preposition ʿalā. I suspect version 1 was indeed original, and that al‑Juwaynī meant the fī to be taken in the same sense as the ʿalā.
- Spr. 601 has instead فيعتبر . In Lbg. 256 لا has been inserted before يعتبر , apparently as a later correction, but when Ibn al‑Firkāḥ quotes this sentence again there is no لا .
- Spr. 601 has instead وبفعلهم . In Lbg. 256 ﺑ has been squeezed in as a later correction to make وبفعلهم .
- Spr. 601 has instead وبفعل . In Lbg. 256 ﺑ has been added as a correction to make وبفعل .
- That is, one who saw the Prophet.
- That is, the opinion al-Shāfiʿī expressed in the latter part of his life.
- The Maḥallī tradition adds على غيره .
- Spr. 601 has instead على , as does the Maḥallī tradition.
- Kevin A. Reinhart, “When Women Went to Mosques: Al-Aydini on the Duration of Assessments,” in Islamic Legal Interpretation: Muftis and Their Fatwas, ed. Muhammad Khalid Masud, Brinkley Messick, and David S. Powers (Cambridge: Harvard University Press, 1996), 116–128.