If some of the jurists of an age have expressed one view, and the rest have

expressed a second view with reference to a particular question, this has the
effect of consensus of opinion in so far as to exclude a third view Some Hanafi
doctors would confine the rule to Ijma' of the Companions: but others hold that
there is no ground for making such a distinction. The Malikis, the Shafi'is and
some Hanafi doctors limit the application of the rule to cases in which the third
view would be in conflict with some common principle underlying the other two.
Fakhrul-Islam and Sadru'sh-Shari'at, however are not in favour of this
qualification. The following examples will be useful in understanding the above
rule. On the question as to what is the period of iddat of a widow pregnant at the
time of her husband's death, some jurists were of opinion that it is the longest of
the two periods namely, the period ending with the delivery of the child, or the
expiry of four months and ten days from the death of the husband, while

other jurists held that in such a case 'iddat would expire on delivery taking place.
A third view, namely, that the iddat is for four months ant ten days, even if such
period expired before delivery is inadmissible as being opposed to ljma'.' Another
example is furnished by the case of a deceased person leaving behind him his
grandfather and brothers. According to some jurists the grandfather would take
the entire inheritance to the exclusion of the brothers while others hold that the
estate should be divided between the grandfather and the brokers. A third
proposition that the grandfather is not to take at all should be negatived as being
contrary to implied lima? In these two cases the third view is held to be
inconsistent with the common principle underlying the other two. In the following
cases, a third view is precluded merely on the ground that only two views were
known to be held by the jurists. A woman dies leaving her husband and her
parents as her heirs, or a man dies leaving his widow and his parents as his heirs.
According to some jurists the mother in either case would Take one third of the
entire inheritance, and according to others she would get one-third of what
remains, after paying the share of the husband or the wife. A third course was
adopted by Ibn Shirin, namely, that in the first case the mother is to get one-third
of the whole, but not in the second case. This according to Sardru'sh-Shari'at
would be opposed to Ijma' and 'therefore' inadmissible." According to some
jurists a marriage may be annulled by reason of any one of five enumerated
physical defects in the husband or the wife, namely, leprosy, insanity, impotency
and other incapacity for sexual intercourse in the husband or the wife. Others
hold that none of these grounds are sufficient: A third proposition that marriage
may be dissolved one some of these grounds and not the others is regarded as

inadmissible: The author of Fall with; however, disputes the correctness of this
opinion.'

Ijma' may be constituted decision expressed in -n of words ( You by practice of

the jurists ( and in either case may be regular ( ) or irregular ( It is said to be
constituted by words if the Mujtahids, either at one meeting or on information of
a question being under consideration reaching them within a reasonable limit of
time, severally declare their opinion in so many words, or if some or more among
the prominent Mujtahids state their view and the others, one hearing this at the
meeting or on receiving information thereof, observe silence, expressing no
dissent. In the first case lima will be regarded as regular and in the second case as
irregular. An Ijma is constituted by practice, if all the Mujtahids in their practice
adopt a particular view of the law, pfif some of them in practice adopt a particular
view, and the others do not indicate dissent by acting to the contrary. T the
former, the Ijma' would be regular, and, if the latter, it would be irregular. Ijma'
by words and lima' by practice are equally authoritative. The Hanafis, the Mallikis
generally, and some Shafi'is jurists consider both regular and irregular Ijma' as
valid in law and binding, though they assign a higher canonical value to the
former. Some Hanafi doctors would make no distinction between the two kinds of
ljma'. On the other hand some Shafi'is. some Malilis, some Mu'tazilis and the
Zahiris do not recognize the validity of irregular ljma' at all.
It is also laid down by Fakhru' l-Islam that if a Caliph among the Companions of
the Prophet expounded the law on a particular question in his sermon without
the audience disputing its validity, Ijma will be presumed with respect to it. The
commentator observes that this rule is not confined to

the first four Caliphs or to the Caliphs at all, but extends to other heads of the
State' provided they are jurists,

The arguments in support of the authority of irregular lima's are, firstly, that if it
were necessary that all the Mujtahids should expressly declare their opinion, then
Ijma' would be impossible of realization and the law never imposes an impossible
condition. Secondly, it is a duty imposed by law on every Mujtahid to express his
dissent, and not to keep quiet when he finds others going wrong on a question of
law and hence silence, or non-expression of disagreement, should be presumed
to be approval. Against these contentions several cases are urged to show that
silence in such a matter is not always equivalent to assent. When "Umar, at a
meeting of his fellow Companions, inquired of them whether it was lawful to
delay distribution of the property acquired in war, all present answered him in the
affirmative, except All who remained silent.. Thereupon 'Umar questioned 'Ali,
who replied in the negative and his opinion was accepted. This, it is said, shows
that Ali did not deem it to be his duty to express disagreement without being
asked for his opinion. In another instance it was reported to "Umar that a woman
whose husband was missing was seen in the company of other men and talking to
them in a familiar way. The woman who was enceinte, on being admonished by
'Umar, miscarried through fear. Umar consulted his Companions whether under
the circumstances he must make her compensation. All the Companions, except
Ali, who kept quict, said that 'Umar was not liable, as he acted in good faith for
the woman's spiritual welfare. "Ali however on being questioned advised that
'Umar was bound to make compensation, and this view was approved. With
reference to these cases, however, the Hanafi writers observe that the
acceptance of Ali's opinion did not show that his was the only correct view of the
law; but that it was preferable to the other views. It is said that silence of a jurist
may sometimes be due to fear, and in support of this it is stated that Ibn Abbas,
during the time of 'Umar, did not

oppose the doctrine of increase ('atul de) in matters of inheritance, owing to the
awe of the second Caliph who held a different view But the authenticity of this
report is denied. As regards exposition of law by the Imam in his

sermon, which is apparently a illustration of the irregular form of lima'. a number

of cases are cited to show that the Companions of the Prophet deemed it their
duty to express their opinion whenever they thought that the head of the State,
was going wrong. Hence in such cases also silence is presumed to be indicative of
consent. This being so in the case of Companions, it is argued by some jurists, that
there is no valid reason why the rule should not apply in the case of other Caliphs
and rulers. It is, however, pointed out that, although much objection would be
obviated, if the application of the doctrine were confined to the Companions,
having regard to the smallness of their number and the sense of equality and
freedom of speech which prevailed among them, the presumption would be
artificial and weak, if applied in the case of the latter-day Caliphs or rulers, whose
audience during a sermon could "not be supposed to include all the learned
Muslims of the World, nor would one expect the same freedom of speech

on the part of the people Abu Ali ibn Abu Huraira says that, if a fatwa of a
Mujtahid is published and is not opposed, it will have the force of Ijma' He
however thinks that the decree of a Qadi published in a similar way will not have
that effect. Abu Ishaqu'l-Manizi, on the other hand, holds the reverse. It is pointed
out by Razdawi apparently in support of Ibn Abu Huraira's view that the decree of
a Qadi is always binding and cannot be opposed, even though based on a wrong
view of the law which is not the case with Mujtahid's fatwa If the fact that a
particular question of law is under consideration be not fully published in that
case also opinions differ whether an lima would be properly constituted with
respect to it.