fi

Let us now see that what are the conditions relating C to constitution of Ijma'.
According to the accepted doctrine of the four Sunni Schools, there must be
unanimity of opinion among all the jurists of the age, in which the decision in
question is arrived at. in order that such decision may have the force of lima in
the absolute form. But, if the majority of jurists who agree in a certain conclusion
do not admit that those who dissent from them posses the qualifications of a
jurist, such dissent will not preclude the formation of absolute ljma'. Some
doctors go further and hold that Ijma' of the majority of jurists is of

ahsolute authority even though they do not question the qualifications of the
dissentient minority. Ibn Jarir, Abu Bakaire-Razi and some Mu'tazilis like Abu'l-
Hassan Khayyat, master of Ka'bi, are said to have held this view. The Hanafis, the
Shafi'is and the Malikis hold that, if the number of dissentients be not large, the
view of the majority will be a valid and binding authority, though not absolute in
the sense that a person disputing it would become an infidel.

The reason why unanimity is insisted on for Ijma' in the absolute form is thus
stated: every jurist individually is liable to err, and the texts, it is urged, raise a
presumption of infallibility only in favour of the entire body. The jurists, who hold
that the opinion of the majority is sufficient for the purposes or absolute ljma,
interpret the texts in question as meaning most and not all. The counted, that if it
were otherwise, the doctrine would be praetically impossible of realization.

In answer to this objection, it is stated by Abu Ishaqu'l-Astirini that he knew of

twenty thousand rules of law based on unanimity. Ibn Hammam goes further and
says that such cases amount to no less than a hundred thousand. The difficulty in
the way of unanimity of opinion among all the Muhammadan jurists of different
countries at the present age is not denied: but it is said that it should not be
impossible. It is, on the other hand, remarked by Ispahani that no instances of
lima' are to be met with other than those mentioned in the books. which
apparently occurred in the time of the Companions and their immediate
successors. It may be observed that, though Ijma' in the absolute sense is difficult
of realization at the present day, the value of the doctrine in its practical aspect
cannot be materially affected by that fact once it is conceded that the opinion of
the majority is of binding authority

According to the Hanafis the Malikis and most w chufi is an Ijma' is completed as
soon as the jurists of the age in which the question arose have come to an
agreement thereon, after they have had sufficient time to mature their
deliberations. But according to one version of Han bal's opinion and some Shafi'i
doctors, it is necessary to wait until the age in which the jurists who were parties
to the Ijma' have come to an end, or, in other words, until all of them have died
without any one having withdrawn his assent or changed his opinion. According
to another report of Hanbal's opinion be was in favour of such suspension of ljma'
only in matters of analogical deduction, but not when it was founded on texts of
the Qur'an or Hadith. The Mu'tazilis, Ash'aris, Ibn Faruq and Salimu r-Rada also
held that expiry of the age of the concurring jurists is a necessary condition.
Imamu'l-Haramain on the other hand, thinks that the Ijma which ensures absolute
certainty is at once effective, but it is otherwise when it merely raises a
probability

There are again some lawyers who are of opinion that a rule of law cannot be said
to be validly determined by consensus of opinion unless not only the age of the
jurists who originally took part in it has expired without any of them changing his
views in the meantime, but that no other jurists bom during that age should
subsequently have expressed a contrary opinion. It is, however, pointed out that
if that were so no ljma' would ever be constituted. The argument in favour of
ljma' being completed immediately is this; once a unanimous declaration is made
it is binding on every Muslim, including the Mujtahids who took part in it, and
hence it is no longer open to any one of them to express dissent. On the other
side it is urged that if unanimity of opinion be essential lo the formation of
absolute limit should also be necessary

for its continuance as authority. Therefore, according to the latter view, until all
who voted in such deliberations have died the possibility of their changing their
opinion is not removed, and consequently the matter remains open to doubt. In
answer to this contention it is pointed out that the language of the texts, which
are authority for this source of laws, does not warrant such a condition, and as
sufficient time, is allowed for deliberation the possibility of the jurists arriving at a
hasty conclusion is negatived. Two precedents are cited in support of the above
view. Abu Bakr during his Caliphate used to divide the property acquired by
conquest equally among the Muslims, without giving preference to any one on
account either of his learning, or of his having accepting the faith earlier than the
others, and to this no one among the other Companions offered opposition.
When, however, "Umar succeeded in the Caliphate he gave to men: of learning,
and to those who had embraced Islam earlier, more than to the others and no
one questioned his action. The inference is drawn that, although in Abu Bakr's
time, the leamed accepted his view of the law without dissent still that was not
deemed to have the authority of Ijma' so as to bind his successor. Another case is
also cited. (Umar during his Caliphate allowed sale of an ummi walad (a female
slave girl who has born a child to her master) without any opposition from the
other Mujtahids. But afterwards 'All, when he became the Caliph, forbade such
sales without any expression of dissent on the part of other Companions. With
reference to the first case, it is alleged that *Umar had expressed dissent from
Abu Bakr regarding division of the spoils of war, and similarly in the second case,
*Ali is said to have disapproved of Umar's view regarding the sale of ummi walad.
Therefore, in none of these instances was there a previous consensus of opinion.'

128
According to the generally received Sunni view when a question is determined by
consensus of opinion, it is not open to individual jurists of the same or
subsequent urists age to come to a different conclusion, except when the

matter is one in which some jurist, before the formation of the lima'. was known
to have entertained a different view. or a jurist a party to the lima' happened
afterwards to change his view. For instance, if the Companions of the Prophet
agreed in laying down a certain law, some among them along with the successors
might not subsequently come to a different conclusion, unless the matter was one
in which before such agreement some of the Companions had expressed a
different view.?

Ijma' of one age may be reversed by subsequent Ijma' of the same age, in which
case the first resolution ceases to have operation. Similarly Ijma' of one age may
be repealed by Ijma' of a subsequent age with one exception.' namely. an Ijma'
arrived at by the Companions of the Prophet is incapable of being repealed
afterwards. It should be noted here that there could be no law laid down by
agreement of the learned during the Prophet's lifetime, as he was the medium of
promulgation of laws by God. In the opinion of Shafi'is, which is also reported to
be the view of Hanbal, consensus of opinion has no force in determining the law
in a matter on which the Companions of the Prophet had expressed conflicting
views. The accepted doctrine of the Hanafi School is that the existence of such
disagreement among the Companions does not debar the formation of a valid
Ijma'. This is in accordance with the opinion of Imam Muhammad. while Abu
Hanifa is reported to have held otherwise. The Malikis agree with Imam
Muhammad on this point. but say that such cases have been of rare Occurrence.
Sarakhasí, however, observes that all the Hanafi Imams agree in holding that
absence of difference of opinion among the Companions on a particular question
is not a
condition precedent for the validity of hima' on that question On the other hand,
it is stated in Mahsul" that the absence of such previous conflict of opinion is an
essential condition according to the Hanafis generally, as it is according to the
Shafi'is In support of the Shafi'i, view it is urged that, if fima be allowed in a
matter in which some of the companions had previously expressed a different
opinion, then it would follow that those Companions were misled, because a law
established by consensus of opinion is regarded as so indisputably right, that any
one disputing it makes himself liable to a charge of infidelity. Such a reflection on
a Companion of the Prophet is not allowed. The Hanafis answer that every
Mujtahid is liable to err, so is a Companion. They, however, concede that Ijma' in
such circumstances would not be absolute, so that any one disputing the decision
would not incur the guilt of infidelity