APPROACHING IJMĀ ʿ : Sociological , Theological and Legal Dimensions of Consensus in Islam

Presenting the emergence and development of ijmāʿ, this paper aims to epistemologically critique the articulation of ijmāʿ in modern Western scholarship on Islam. The article argues that to understand ijmāʿ, we need to explore its social context, theological foundations, and practical consequences. A tolerance of the difficulty in identifying truth, an understanding of the law as being built on uncertainty, and employing jamʿ, as an assemblage are essential dynamics in the formation of the law and Muslim societies. The corpus of classical literature on ijmāʿ is expectedly contradictory, and full of gaps. Rather than seeing this as problematic, the article recognizes it as normative. Against the argument that ijmāʿ was the ‚foundation of foundations,‛ or that it was a well-defined concept that gained political power against adversaries, the article argues that in practice ijmāʿ remained marginal, and confined to the minimum necessary for each individual to be a member in the Muslim community.

consensus meets the early tolerance of different readings of the Qurʾān, based in different tribal dialects. Here, I am not arguing of unintentional localized consensuses that had to be reformed into one universal consensus in the tenth century. I argue of intentional localization of consensuses that meets the cultural, and social understanding I have proposed, and, not the least, an earlier norm of Islam. This norm had to be reinvented long centuries later on in the form of ʿurf that was finally sanctioned as a legitimate source of legislation.
From these early, and scanty materials to the classic theory we find the writings of the four founders of Sunni schools as a juncture between a fluid sociocultural, and a relatively concrete legal ijmāʿ. There is no documented statement of Abū Ḥanīfa (699-767 CE) about ijmāʿ. His students related to him only one point about ijmāʿ-that is for consensus to be valid, there should not be an earlier dispute about the concerned question. 11 Aḥmad ibn Ḥanbal (780-855 CE) had a comment that whoever claims ijmāʿ is a liar. 12 If Abū Ḥanīfa avoided consensus to open more space for raʾy, Ibn Ḥanbal's intention was more likely to ground rulings in naṣṣ, text. Writings about ijmāʿ from this time refer usually to Shāfiʿī, Mālik, and the famous exchange of arguments Shāfiʿī had with the Mālikʾs students. ʿAmal Ahl al-Madīnah, or the tradition of the people of Medina, is commonly attributed to Mālik, as a main source of legislation. It should, more correctly, be attributed to some of his students, who are confused, themselves, about what really the Imām meant by this phrase. This is not the place to further elaborate on this issue, but it is sufficient here to highlight that there are occasions, in which he ruled against the tradition of Medina. Abū ʿAbbās al-Qurṭubī (D. 1258 CE) concludes that Mālik would prefer the tradition of Medina whenever there is a dispute. 13 In his commentaries on al-Mustaṣfa, Ḥamza Ḥāfiẓ writes, ‚No doubt that Mālik frequently relied on the sayings and doings of the people of Medina. For instance, Abū Yūsuf said to him: tūʾadhinūn bi al-tarjīʿ without having a Prophetic ḥadīth? So, Mālik me. 11 Ibid., 42. 12 Ibn Qayyim al-Jawziyyah, Iʿlām al-Mūwaqiʿīn, 248. 13 Kabbī,43. turned to him, and exclaimed: I never saw something stranger than this! The call to prayer is cried out in public five times every day, transmitted from a generation to a generation since the Prophet till now; do we need this and that person, fulān wa fulān? This is more correct than ḥadīth.‛ 14 In fact, no one of the four founders of law schools elaborated on consensus as much as Shāfiʿī did. Nevertheless, he too is neither clear, nor decisive. Schacht explains Shāfiʿī's rejection of the Medina consensus as rooted in its anonymity. He quotes him as saying, ‚I wish I knew who they are whose opinions constitute consensus, of whom one hears nothing and whom we do not know, Allah help us!‛ 15 Schacht points to Shāfiʿī's hostility toward the use made of consensus by the older schools. Patiently, Schacht tries to trace the concept throughout al-Umm, and rightly concludes that the text is ‚composite, containing passages of different dates and partly revised.‛ 16 However, he states that late Shāfiʿī, his final concept of consensus, was a consensus of the community at large without being ‚able to dispense completely with the idea of consensus of the scholars.‛ 17 Schacht writes that Shāfiʿī merges the consensus of the community with that of the generality of scholars: ʿawāmm ahl al-ʿilm, and opposes the later to that of the special among them. 18 Devin J. Stewart recognizes this merging, but to conclude, on the contrary, that ‚most of al-Shāfiʿī's discussions of consensus likely refer to the consensus of Muslim jurists.‛ 19 Stewart interprets ʿāmmatahum, their generality, as the generality of scholars, not the commoners of Muslims. As Shāfiʿī uses ʿāmmah to refer sometimes to Muslims, and sometimes to the generality of scholars, we have to put phrases like those in a larger context of Shāfiʿī's text.
We have, so far, three understandings of consensus: first, sociocultural consensus, or ʿurf, second, consensus of the Medinese, in a sense that it could be traced back to the sunnah of the Prophet, and third, the consensus of the scholars. Shāfiʿī never attends to the first communal consensus, and Schacht's understanding is, in fact, wrong. Shāfiʿī, however, is truly confusing because he uses consensus sometimes to refer to the second understanding, and sometimes to the third one. In the second understanding ʿāmmatahum means the people of Medina, not all Muslims; in the third understanding ʿāmmatahum is a reference to the scholars, as Stewart stated. In the lexicon of Shāfiʿī there are two terms: khabar, and raʾy; the consensus of Medinese is khabar; that of the scholars is raʾy.
Mālik, Aḥmad, and Shāfiʿī had an identical project: documenting the Sunnah of the Prophet to use it in the building up of a growing, and to-be-comprehensive, legal system. No one of them seems to attend to the cultural aspects of the community, or to the right of the community to create new legislation, at least when discussing consensus. Hallaq's definition of consensus as the consensus of Companions, which attests to the Prophetic tradition is true. It is during the time of those scholars, not earlier, that we can find proof of this understanding. In al-Risālah, Shāfiʿī writes, Someone told me < what is your evidence in following what people have consensus upon, when there is no Qurʾānic text, and they did not relate it to the Prophet? Do you claim what the others 20 say that their consensus could be based but on a definite piece of Sunnah even though they do not mention it? So, I said to him: what they had consensus upon, and they stated that it is related to the Prophet, then it is as they said, God willing. What they did not state that it is related to the Prophet could be, or could be not, related to the Prophet. But it is impermissible to take it as related to the Prophet, for it is not permissible to relate to him something except by hearing; and it is not permissible to relate to him something by speculation that could be wrong. So, we used to follow their sayings, knowing that Sunnah of the Prophet would not be unknown to ʿāmmatahum, though it may be unknown to some of them. And we know that ʿāmmatahum does not get consensus that contradicts the Sunnah of the Prophet, or that goes wrong, God willing. 21 It is clear from the above passage that Shāfiʿī refers to the generality of Companions, and/or the Medinese, and in a sense that their practice should have been based on Prophetic Sunnah. In other words, it is a sort of khabar.
Shāfiʿī, however, uses consensus to refer to the consensus of scholars too. For instance, he wrote, ‚Since it [a certain piece of ḥadīth] could have one of two meanings, the ahl al-ʿilm, people of knowledge, should not give it a special, rather than a general, meaning without evidence: of Sunnah of the Prophet, or a consensus of ʿulamāʾ al-Muslimīn, the scholars of Muslims, who could not have consensus that contradicts his Sunnah.‛ 22 It is important to notice here that Shāfiʿī understands the function of scholars' consensus, not in terms of creating a new rule, but only in terms of raʾy that interprets the khabar of Sunnah. Shāfiʿī in another passage writes that If one of the people may have said, within the knowledge of special scholars, fī ʿilm al-khāṣṣah: Muslims, past and present, have had a consensus to approve the Sunnah related by one individual, khabar al-wāḥid, and recognize it, for it has been known that everyone of Muslims' jurists, fuqahāʾ al-Muslimīn, has approved it, I would accept it. However, I [personally] would rather say: I do not recall that Muslims' jurists have disputed the approval of khabar al-wāḥid, to indicate that they all approve it. 23 Here, Shāfiʿī uses Muslims to mean only scholars, but he has already clarified his context: fī ʿilm al-khāṣṣah. This use clearly meets Stewartʾs definition of Shāfiʿī's consensus. However, we should keep two reservations, for Shāfiʿī here is, first, restricting the function of consensus to the interpretation of text, second, showing awkwardness toward using the concept of scholars' consensus that he explicitly says that even though he would accept it from other people, he would personally prefer to put it in the negative style: I do not know that they disputed it. This is, by the way, the same strategy of Aḥmad. In fact, this awkwardness could turn into frank hostility towards those who over-use the term. He writes, ‚Neither I, nor any one of the people of knowledge, say: there is consensus upon this, except for that which you hear from every scholar you meet ever, and he relates it to those who preceded him, like al-Ẓuhr Prayer is four [rakʿa], wine is prohibited, and the likes.‛ 24 In this sense, we must ask: what difference would it make to be a scholar or a commoner?
From this point, I want to move to show that Shāfiʿī, indeed, used consensus in a third sense: that of the community at large. However, this is not the older sociocultural communal consensus that actively sanctioned legislation. This is the passive minimum consensus among Muslims. Those who do not agree with it cannot be members of the community. This easier, if dangerous, consensus is not manufactured, or monopolized by the scholars as Stewart may have argued.
Stewart's central argument is twofold. First, consensus came to be the corner stone of Islamic Law, and the norm, according to which the membership in Muslims' community could be accepted, or denied. Second, consensus has been the business of scholars, a means of power they used to control, and regulate their societies. Stewart contrasts his argument to those of Goldziher, Watt, and Lewis. He writes, To Goldziher, however, ijmāʿ seems a diffuse and nebulous principle, which he describes as ‚a nearly unconscious ‚vox populi.‛ Bernard Lewis remarks that Islam has no ecclesiastical hierarchy and no councils or synods to decide questions of heresy, but only ijmāʿ, the workings of which are ‚barely definable.‛ Watt realizes that ijmāʿ played a role in defining heresy, but like Goldziher sees it as an ill-defined group feeling, though he notes that the ʿulamāʾ were the ones empowered to decide specific cases. In his view, the dynamics of Islamic orthodoxy and heresy are reminiscent of a tribal system; what determines whether a believer's unusual views are acceptable is merely the ‚feeling‛ of the community's members, embodied in the principle of consensus. He concludes that ‚there is more communalistic thinking in Islam than is usually realized.‛ 25 Stewart is not happy with this vague, and soft picture portrayed of ijmāʿ. For him, these analyses miss the rigorous, and determinative nature of this crucial principle. He states, ‚While Goldziher, Watt, and others take consensus to be something like popular opinion, in actuality it is a well-defined legal principle cited, contested, and referred to constantly within the community 24 Ibid., 534-535. 25 Stewart,Islamic Legal Orthodoxy,[37][38] of legal scholars.‛ 26 I will discuss those two theses after presenting the classic theory of ijmāʿ. Here, I only want to point out to two key-terms in the above passages: ill-defined, and well-defined. A presentation of the classic theory would make it easier for us to understand the nature of consensus, and whether it is ill, or welldefined. Before leaving this part, however, we must briefly review the sociopolitical background, on which ijmāʿ emerged, and developed.
Ijmāʿ is not only a concept, or a legal principle; it is a social discourse. To understand its emergence, we have to situate it in its sociopolitical context: the sociopolitical context of Islam in its first two centuries, especially after the death of the Prophet. This context, as we know, was a context of political conflict, ideological dissidence, and social turbulence. Ijmāʿ emerged within contexts of civil war, major and acute social structural changes, economic transformations, cultural and religious encounters and confrontations with a variety of non-Arab and non-Muslim nations, ideological skepticism, theological polemics, doctrinal fragmentation, and two-times complete re-organization of the caliphate system. Moreover, the social organization, be it tribal or otherwise, the political conflicts over authority, and the religious argumentation, and sectarianism were all so amalgamated and interconnected that it was impossible to articulate or solve one problem of them at a time.
Central to these conflicts, and their eventual solution, were the two political questions of administration, and representation. In his book al-Islām wa Falsafat al-Ḥukm, Muḥammad ʿImāra argues that ruling in early Islam was conducted through a consultation council of seventy members, and a more restricted forum of ten Companions. This organization of representation, and consultation collapsed gradually, and disappeared by the erection of the Umayyad Caliphate. 27 This approach helps us understand the complex negotiation of political authority rather than reducing it to either autocracy, or communalism. ʿImāra is arguing of three concentric circles of al-ʿAsharah, al-Muhājirūn-al-Awwalūn, and al-Muhājirūn-wa-al-Anṣār-that is the Ten, the First Emigrants, and the Emigrants and the Medina Alliances. Those circles are circles of consultation, and representation. The death of the Prophet added a religious function to these political circles. Al-Muhājirūnwa al-Anṣār, and a larger circle of the Companions became the reference in matters of religion: theological questions, ethical principles, and legal regulations.
The above system of representation, and consultation had to transform into a new system, where new spaces are created, and differentiated, new techniques of administration had to grow, and develop, new rules of representation had to settle down, new social groups had to be included, new classes had to consolidate, and new knowledge had to be produced and legitimized. Ijmāʿ was being created throughout this trans-formative context. To conceptualize the final settlement, we should, theoretically at least, recognize a ruler, who, unlike al-Maʾmūn, does not busy himself by theological discussions, a more developed bureaucratic administrative system that includes people of different competing ethnic, and religious groups, and a complex elite made of highrank officials, generals, tribal chiefs, representatives of religious communities, traders, intellectuals, and religious scholars. Historically, among the most important struggles that had to be crossed before a settlement could be realized was the crisis of khalq al-Qurʾān, or the Creation of Qurʾān. It is in this crisis that we see the last major war political rulers had to fight over religious authority. It is also in this crisis that we can see the defeat of the scholars who allied themselves with the political rulers, and the victory of those who grounded their authority, not in monopoly over religious authority, but in their representative power of the community at large. The Shāfiʿī's text reflects images of these transformations: consensus of Medinese, of scholars, and of community at large. The frequent fusion of the last two consensuses is a reflection of the assumed representative role of the scholars. The fading away of the earlier consensus, and its transformation into khabar is also telling. The later resolution of this important crisis in early Islam left a political ruler chosen basically by his own house but approved by both the state's elite and the community at large. It also left behind an administrative apparatus that was, at least by the standards of that time, relatively technical and objective. However, it also left two consensuses: one of the qualified scholars, and one of the community at large.
The community consensus became the space where the minimum standards of the membership of the Muslim community are defined-for instance, Dhuhr is four rakʿah and wine is prohibited, to use Shāfiʿī's examples. All factions and sects including those that were severely condemned by scholars, al-Muʿtazila for instance, and the schools that never complied to the four orthodox schools, al-Ẓāhirīya for instance, could not have their membership denied. Community consensus was the minimum required by every man or woman to be a Muslim, not a scholarlywritten, detailed description of what makes someone a Muslim. Here, I am denying neither a scholars' consensus, nor a power played by them. I will discuss in the next section the scholars' consensus as it came into existence in classic theory of fiqh. However, my point now is that the scholars exercised their power, not through the principle of ijmāʿ, but through, first, creating a space of religious knowledge that has relative independence from political authority, and second, through the creation of a comprehensive, and detailed body of fiqh. On the one hand, they distinguished a sphere of religion from the sphere of politics, and, on the other hand, they perpetually expanded the religious sphere to include all other aspects of social life. Religion was being transformed from a limited number of ḥudūd, basic principles of ethics, a few regulations of market and family matters, and a larger area of ritual instructions to a comprehensive, and rational system that invades the minutest spaces of social and personal life. The more the scholars could expand this knowledge through their daily interaction with the people's reality, and their use of a set of developed legal methods and techniques, the less direct access the state had to the personal and social lives of its subjects. The more they rationalize this knowledge, thanks to Greek philosophy, and its decisive means: analogy, the more they could control it, and expand it even beyond the limits of the Qurʾānic and Ḥadīth texts.
Both the communalist and democratic pictures of ijmāʿ that Goldziher presents, and the elitist picture of it, where a consolidated, and unified class of scholars monopolize ijmāʿ, and consequently their societies, which Stewart presents, are right. We need not choose one of them; we must only integrate them. Scholars have always exercised power. They have to do this, not by enforcing a principle of ijmāʿ, but by bringing their subject willingly to an extensive, indeed ever-expanding, sphere of knowledge, which only scholars are qualified enough to comprehend it. They exercise their power, not by providing the right interpretation, but by creating, administering, and, not infrequently, inter-disputing the sphere of interpretation-that is by developing the legitimate means of legal reasoning.

Classic Theory of Ijmāʿ
Ijmāʿ has a number of contesting definitions. In al-Mustaṣfa, al-Ghazālī (1058-1111 CE) defines it as ‚the consensus of the Muslim community, ummat Muḥammad, on a religious matter, amr min alumūr al-dīnīya.‛ 28 Al-Zarkashī (1344-1391 CE) in al-Baḥr al-Muḥīṭ, defines it as ‚the consensus of the qualified scholars of the Muslim community, mujtahidī ummat Muḥammad, after his [the Prophet] death, in a precedent, fī ḥādithah, on a matter of matters, amr min alumūr, in a time of times, fī ʿaṣr min al-aʿṣār.‛ 29 Though both al-Ghazālī and al-Zarkashī belong to the Shāfiʿī School of fiqh, they still have their difference in defining ijmāʿ. Is it the community at large, or the qualified scholars; does it cover all matters, or only the religious of them; and what is the time framing of ijmāʿ? All those questions are subject to further negotiations within the same school. It is true, nevertheless, that a more restrictive definition, in terms of, first, who can practice ijmāʿ, and second, what areas can be covered with it, have dominated a majority of classic writings.
Central to the definition of ijmāʿ is the definition of those who have the authority to create it. They are called mujtahid, scholars of the community, ahl al-ḥil wa al-ʿaqd, or ahl al-raʾy wa al-ijtihād. Al-It is possible to imagine the inclusion of the commoners in consensus. Sharīʿah is divided into what could be comprehended by the commoners and the specialists, like the five prayers, the commandments of fasting, charity and pilgrimage, there is consensus upon, and where commoners and specialists agree upon it. In Sharīʿa, there is also what could be comprehended only by specialists, like the details of the way of praying, trade < So, what the specialists have consensus upon, the commoners have accepted, knowing the truth is what ahl al-ḥil wa al-ʿaqd have consensus upon. They never dispute it, as they too agree upon it. It is better to call it the consensus of the entire community. 31 Al-Ghazālī, here, is arguing that, in reality, it does not happen that the commoners would object something that the entire community of scholars have accepted. In this way, the infallibility of ummah would be invited to support that consensus of scholars. He, nevertheless, proposes the hypothetical question: will the consensus be sanctioned if a commoner objected to it? Ghazālī evokes the two logical answers, yes, and no, but goes for no! He writes that this case is beyond imagination, for there could not be a sane commoner who objects to the consensus of all scholars! 32 Āmidī and Bāqillānī chose clearly to include the commoners. Āmidī invites six arguments of not considering the commoners and refutes them one by one.
The specialists, too, were subject to further discussions in the classic theory. The differentiation of different sciences under the rubric of Islamic scholarship made scholars like al-Shawkānī to conclude that the consensus in each science is the consensus of the corresponding scholars of this specific science. 34 Al-Ghazālī includes both the faqīh and uṣūlī, but not the logician, or the grammarian. 35 Al-Zarkashī concurs that all specialists of each art, fann, should be included in each consensus concerning this art. 36 Interesting questions were raised about the mujtahid, especially those about his ʿadālah, or integrity. The issue of ʿadālah is controversial, but, interestingly, the majority of scholars do not consider it a condition for those who make ijmāʿ. Al-Ghazālī states that both the fāsiq, and mubtadiʿ, or the immoral, and the eccentric must be considered in consensus. Al-Zarkashī gives space to all the multiplying opinions in his text. It seems from his discussion that the problem is not whom we will allow to join consensus, but rather, whom we can allow to block it. He includes women and slaves if they were mujtahid. Both Ghazālī, and Zarkashī include al-tābiʿī al-mujtahid within the consensus of the Companions. In other words, their consensus must include him, as the merit of being included is ijtihād, not the companionship. Al-Ghazālī considers neither the consensus of the four Rāshidūn, nor that of the four founders of law schools as a sufficient ijmāʿ.
As it is not realistic to expect an individual explicit confirmation from every mujtahid on a certain legal ruling, scholars debated if an anonymous consensus, where the mujtahid will not object would be enough. There are many scholars, like Ghazālī, Rāzī, and Āmidī, who considered it as a relative consensus that does not rise to the level of absolute consensus; and it seems that this was the opinion of Shāfiʿī as well. 37 However, the majority of scholars seem to accept it with a few conditions. Al-Zarkashī, for instance, stipulates that the consensus has to be well-known in public, that enough time should pass for the mujtahid to ponder it, and that signs of neither satisfaction, nor rejection had shown up. 38 Some of those scholars interpreted the Shāfiʿī's statement that an opinion cannot be attributed to the silent, as the silent in a meeting, al-sākit fī al-majlis.
The time frame of consensus was also controversial. It is understood that consensus is to be held during a certain time. They frequently call this time ʿaṣr, which is age, or a generation. How long should we stay before it is sanctioned? Some scholars suggested that we wait until all the mujtahids who made this consensus die. Al-Ghazālī reduced this time period to one moment. 39 Al-Zarkashī too wrote that consensus could be held immediately, and he rejected the condition that requires the death of all mujtahids. He did not grant the scholar who accepted consensus the right to reverse his opinion. The whole discussion is theoretical, because we know a meeting of all scholars never happened. However, the discussion is still relevant because it has strong connotations with the issue of al-sākit, or the silent scholar. We have to give those silent scholars, whose opinions they have not declared, enough time to ponder the issue discussed and decide about it. This is why Al-Ghazālī writes again that if the tobe-consensus has spread long enough to be known, and they are still silent, then, their silence is a confirmation, so that a consensus could be possible. Ḥasan al-ʿAṭṭār (1766-1835 CE) writes that it could be any time, short or long, as new mujtahid scholars will continuously join the community of consensus, making this waiting continues to the end of times. 40 In fact, it is impossible to find a clear statement that makes a practical sense about the time frame. On the one hand, there is the theoretical assumption that one moment is enough. However, it is enough if it could happen at all. On the other hand, reasonable time should pass, so that it is likely that every one of the community of consensus has already known about it, thought about it, and accepted it. There is no need for a declaration to confirm the acceptance. It is the other way around: we need a declaration of the rejection.
The above discussion evokes a crucial question: is it possible at all that a consensus could be sanctioned? This question is in the heart of every scholar's discussion of ijmāʿ. There are three questions about its possibility: could all mujtahids have consensus on a matter; could it be known; and could it be transmitted? Al-Zarkashī evokes an anonymous argument that people cannot have consensus on eating one kind of food. 41 It seems this argument was known, for Al-Ghazālī too writes that yes, it is possible that all people would have consensus on eating raisins! 42 Al-Zarkashī says impulses and food-taste are not like aḥkām, legal rulings, for they have different motivations. He, however, concurs that there could be no consensus on khabar, but it is possible to have consensus of raʾy. This consensus of raʾy is exactly what other scholars had to justify, for it is unexpected for different people to have one raʾy, opinion, on a certain issue.
Al-Ghazālī makes an interesting argument. He writes that ‚dalīl taṣawūrih wūjūduh,‛ or the evidence of its being imaginable is its [actual] existence. 43 For him, the evidence that it is possible, or imaginable, is its very existence in matters like the consensus of Muslims to pray five times daily. To further encounter the raisinsargument, he puts it in the negative form, and writes that it is not impossible for them to eat raisins simultaneously. I will come to his curious logic in my brief discussion of the classic theory later on. Both al-Ghazālī, and al-Zarkashī agree that it is possible to know it, al-iṭṭilāʿ ʿalayhi, as well as to transmit it. It is important here not to confuse opinion with analogy, for Ghazālī concurs that agreement of analogy, qīyās, is less likely to happen. More important than their agreement about its possibility is the terminology they are using in constructing their argument. As I said, I will come to this point later on, but I want now to only include some of these terms: mumkin ʿādatan, imkānuh ʿādatan, lā tamnaʿ al-ʿādah, and taṣawūr wūjūdih. This entire terminology is theological, and speculative. They refer to its ‚ordinary possibility,‛ and ‚the possible imagining of its existence.‛ The sphere they are moving into, however, is not the usual sphere of legal rationality; it is theological, speculative, and theoretical rather than practical.
The scholars who moved into the expected sphere of legal rationality could not comprehend the possibility of ijmāʿ to exist. Some logicians, Shiite scholars, and possibly al-Naẓẓām (775-845 CE) denied the logical possibility of making consensus, when geographical, and intellectual factors are taken into consideration. Al-Rāzī restricts its possibility to the time of the Companions. 44 Al-Āmidī presents the argument of its denial, and, interestingly, uses the same speculative theological terminology. He writes, ‚al-ʿādah tuḥīl, it is usually (or normally, or ordinarily) impossible, that they agree on one opinion, exactly as it is normally impossible for them to eat the same food in the same day.‛ 45 However, he agrees with the majority that it is possible for consensus to exist using al-Ghazālī's logic: ‚al-wūqūʿ dalīl al-taṣawūr,‛ or its real existence is the evidence of imagining it. 46 It is curious to review how the scholars legalized ijmāʿ. Basically, there were three different sources of legalizing ijmāʿ: Qurʾān, Ḥadīth, and reason. No one of them was absolutely convincing or accepted. The list of quoted Qurʾānic pieces was growing. There were pieces that attribute to Muslims integrity, goodness, allegiance with God, being the righteous witnesses on other peoples, etc. to justify their power to sanction new aḥkām. Scholars do not have ijmāʿ on any piece of them. Al-Āmidī discusses the Qurʾānic evidence in twenty-five pages to eventually state, ‚Know that holding on these āyāt, though they are good for pondering, mufīda li-al-ẓann, they are not good to provide certainty. That who claims certainty to the matter [ijmāʿ], must not count on the doubtful to prove it. It is good for only those who think it [ijmāʿ] is doubtful, ẓannīyyah, and rational, ijtihādīyyah.‛ 47 By ẓannī, al-Āmidī means the text is ambiguous; its meaning is not clear; its indication of the legislation of ijmāʿ is not obvious; other available interpretations of those verses are more convincing.
Scholars searched ḥadīth to find their evidence. There are two directives in the reports they selected: a Muslim must not step away from al-jamāʿah, the community, and the Muslims' community cannot agree on an error or falsehood. The first directive of sticking to the group was critiqued by many scholars for being, like the Qurʾānic quotations, ẓannī. The directive for Muslims to come together does not immediately mean a scholars' consensus is a source of legislation. The second directive, which comes in different phrasing, and wording, is clear and decisive: if Muslims come together into one body that has one opinion, this opinion is infallible. The text is clear and decisive; its meaning cannot be ẓannī. However, what makes it still ẓannī is its sanad. A thorough examination of the chain of transmitters of these reports immediately reveals embarrassing problems. A scholar is not supposed to tolerate such a sanad. He is especially not supposed to tolerate it in sanctioning a source of legislation.
After searching the Qurʾān and Ḥadīth, scholars turned to reason. The basic argument is that it is normally impossible, mustaḥīl ʿādatan, that all scholars would have consensus on something that is false, and they have an agreement that ijmāʿ is a legitimate source of legislation. 48 This argument is circular: the evidence of consensus is the consensus of scholars. Therefore, it was frequently rejected. Al-Āmidī introduces a curious argument: the reports of ḥadīth are reliable, not because of their sanad, but because it is normally impossible, al-ʿādah al-muḥīlah, for all those scholars to accept them, and make them the basis of ijmāʿ unless they are true reports. It simply means he is grounding the evidence of ijmāʿ not in ijmāʿ itself. He insists that it is al-ʿādah almuḥīlah, not consensus itself, that validates those reports. 49 In other words, it is the credibility of those reports that validate consensus -credibility that is rooted in the acceptance of scholars to these reports! In al-Mankhūl, al-Ghazālī writes, So if it is asked: what is your choice in proving ijmāʿ, we will say there is no hope in a method of reason, as there is nothing there that could be indicative. And it [ijmāʿ] was supported with neither the method of samʿ, report of ḥadīth, with khabar mutawātar, text that is transmitted by many people, nor with a text of the Book. And proving ijmāʿ with ijmāʿ is tahāfut, ridiculous. And the surmised analogy has no place in al-qaṭʿīyyāt, the definitive. Those are the sources of rulings. Nothing is left behind but masālik al-ʿurf, ways of customs. 50 Left with only ʿurf, al-Ghazālī explains that what he means with ʿurf is not what this concept refers to in uṣūl-that is the customary culture and habits of Muslims. He means ṭard al-ʿādah, or the perpetual nature of things. In the normal course of life, people will not gather, all of them, to make a lie. It just does not happen! Is it ḥujjah, a legal evidence? Al-Ghazālī says: yes, it is called evidence metaphorically, yusammā ḥujjah majāzan. 51 It seems al-Ghazālī was not happy with this end. In al-Mustaṣfa, he further refines his argument. He calls the previous argument ʿilm alistidlāl, knowledge of deduction. He keeps it, and considers that consensus as relying on mustanad marfūʿ, a report from the Prophet that its sanad, or chain of transmitters, is unknown. However, he introduces a new argument that he calls al-ʿilm al-ḍarūrī, or the necessary knowledge. Each of those reports is not, sanad-wise, reliable, but the whole of them is reliable. There are many of them; too many to be baseless. This is not an uncommon method in fiqh. 52 He writes, ‚It is like what is known by a number of presumptions, each of them is probable, but all of them are beyond probability. *This is how+ the necessary knowledge could be available.‛ 53 Al-Ghazālī is fully aware of the danger that Stewart points out: excluding a Muslim from the community of believers on the basis of denying ijmāʿ. Ijmāʿ has to be followed; it is obligatory. Is not fasting obligatory too? Will a Muslim become unbeliever for missing this commandment? Stewart answers this question too. If you deny that fasting is a commandment, you are excluded from 50  This is not a unique position to al-Ghazālī. Ḥasan al-ʿAṭṭār wrote, He said in al-Burhān that it is spreading on jurists' tongues that the denier of consensus is an unbeliever. It is certainly false, for that who denies aṣl al-ijmāʿ, consensus as a source, does not become an unbeliever. Calling people unbeliever and excommunicating them is not an easy thing. < The denier of that which has consensus upon, which is known of religion by necessity, al-mujmaʿ ʿalayhi al-maʿlūm min al-dīn bi-al-ḍarūrah, becomes an unbeliever, not because of his denial of al-mujmaʿ ʿalayhi, but because of his denial of al-maʿlūm min al-dīn bi-al-ḍarūrah. 55 In fact, we find a similar discussion in al-Zarkashī, in which he quotes a number of earlier scholars. It is interesting in this discussion that the classification of Muslims into commoners and specialists runs to the advantage of the commoners. A commoner is not required to know the consensus of the specialists. If he denies it, he will still be a member of the community of believers. There is a quotation of al-Jūwaynī (D. 1040 CE) in which he states that it is the scholar who would be excluded from the community of believers, if he denies the consensus of scholars. 56 Scholars had to decide about a crucial question: is the rule of ijmāʿ definitive, or probabilistic, qaṭʿī, or ẓannī? The answer is not easy. The qaṭʿī-ẓannī is a frequent question in classic literature of 54 Ibid., 335-336. 55 Al-ʿAṭṭār, Ḥāshīyat al-ʿAṭṭār, 238-239.
Islam. Sometimes, it is contrasted to another dichotomy of thubūtdalālah, which refer to the historical authenticity of the text versus its meaning. A verse of the Qurʾān is always qaṭʿī al-thubūt, authentic, but it is usually ẓannī al-dalāla, its meaning is uncertain. Ḥadīth has frequently occupied the opposite position; being ẓannī al-thubūt, uncertain in its authenticity, but qaṭʿī al-dalāla, certain in its meaning. For ijmāʿ, the two questions had to be answered. First, is there really ijmāʿ about this issue? Many scholars, especially in a context of heated polemics, use ijmāʿ to validate their own opinion, and deny their adversary, casting him as shādh, or eccentric. We have, therefore, to be careful when you decide that there is ijmāʿ about a certain matter. The thubūt of ijmāʿ, its authenticity, is always a matter of investigation. There are some works that tried to document collections of ijmāʿ, like Marātib al-Ijmāʿ of Ibn Ḥazm, and al-Ijmāʿ of Ibn al-Mundhir. Rather than reflecting the possibility of the task, they showed the size of khilāf, or dispute. The text of these works was critiqued by other scholars, and the parts that went undisputed were either too insignificant to raise a dispute, or too significant not to be known.
Scholars had then to answer the legally important question: the question of dalālah, or significance; is it qaṭʿī, or ẓannī? There are those who decided ijmāʿ is qaṭʿī al-dalālah, which means its rule is absolute, or ultimate. Al-Shawkānī (1759-1834 CE) attributes this opinion to a number of scholars like: al-Ṣayrafī, Ibn Burhān, al-Dabbūsī, Shams al-Aʾimmah, and al-Aṣfahānī. 57 He also attributes the opposite position to other scholars, like al-Rāzī, and al-Āmidī, who thought ijmāʿ is ẓannī al-dalālah. 58 Most of scholars, it seems, and that what Al-Shawkānī concurs, held that it is qaṭʿī if ṣarīḥ, that is explicitly confirmed by all the mujtahids, and it is ẓannī if it was only sukūtī, or anonymous. Al-Zarkashī evokes the same discussion and reaches the same conclusion, that it is definitive if explicitly confirmed, and probabilistic if it is anonymous. 59 He also invites a curious argument, which he seems to accept: Al-Bazdawī, and a group of Ḥanafiyyah said: ijmāʿ is differentiated into a number of levels. Ijmāʿ of the Companions is like the Book, and al-khabar al-mutawātir, the most authentic report of ḥadīth. Ijmāʿ of those who come after them is like al-ḥadīth al-mashhūr, the well-known report of ḥadīth, even that its publicity does not stand to its sanad-wise authenticity. The ijmāʿ that was preceded by khilāf, dispute, in an earlier generation is like khabar al-wāḥid, a report of ḥadīth transmitted by one person. 60 In another passage, al-Zarkashī discusses the anonymous ijmāʿ. He presents thirteen different opinions that spread an entire spectrum from its being qaṭʿī and wājib, and down to its not being even a legitimate ijmāʿ. 61 The definitiveness, or probabilistic nature of ijmāʿ has serious consequences when it comes to its relationship to both the text, and ijtihād. The majority of scholars maintained that ijmāʿ is based in raʾy, so it is inferior to khabar, and cannot have authority over it, in terms of naskh, abrogation. Other voices, however, argued that ijmāʿ can, and did, abrogate the Qurʾān, and Sunnah. They find their evidence in ʿUthmān's ruling to give the mother one sixth of inheritance instead of one third, as the Qurʾān says. Asked by ibn ʿAbbās for an explanation, he said that it is the rule of ‚your people, boy!‛ 62 They also rely on Abū Bakr's changing of the regulations of distributing zakāt, which were mentioned explicitly in the Qurʾān. 63 It seems, nevertheless, that scholars were more tolerant of takhṣīṣ, or considering the case as particular rather than general, than they had been with naskh, or abrogation. Al-Āmidī simply states that ‚I do not know about any dispute in takhṣīṣ the Qurʾān, and Sunnah by ijmāʿ. 64 However, we should not rush into conclusions, for a careful review of the literature of those scholars reveals that they hold ijmāʿ valid, when it is supported by, or relying on, khabar. The ijmāʿ that is completely based on raʾy would not count for them. Nevertheless, ijmāʿ is still put in priority to text, in terms of practicality. Before reviewing the text, a scholar has to check ijmāʿ first. If he finds the solution of his problem, the ruling he is trying to make, then ijtihād will be unnecessary. In 60 Ibid. 61 Ibid. 494. 62 ʿAbd al-Rāziq, 97. 63 Ibid.,[97][98] Ibid., 98. addition, unlike text, ijmāʿ itself can be subjected to neither abrogation, nor takhṣīṣ. 65 That brings us to the interesting question of: could ijmāʿ be changed by a newer ijmāʿ? The easy, and common answer is no! Once sanctioned, ijmāʿ is supposed to be observed forever. After all, what would be the point of creating ijmāʿ, and casting it with shadows of infallibility if it is subject to change in the future? Some scholars, however, decided that if ijmāʿ is based on mustanad, a document, which means a textual evidence, then it could be changed if a newer evidence is found. Moreover, a new ʿillah, legal reason, of the text could be thought of, and, therefore, a new analogy could emerge with a new ijmāʿ. 66 A related, and important, question is about the possibility of sanctioning ijmāʿ at all if the issue concerned was subject to study and dispute in an earlier generation. To sum up a long discussion, we can conclude that it was and remains very controversial.

The Legal, Sociological and Theological Dimensions of Ijmāʿ
I want to articulate the issue of ijmāʿ from legal, sociological, and theological angles. Legally, ijmāʿ has not been, in terms of practice, central to the body of fiqh, not if measured to, for instance, qīyās. The famous book of ibn al-Mundhir (856-930 CE) that supposedly collects the articles of ijmāʿ is a small book that has a collection of rulings, which were found to be agreed upon by scholars. A thorough review into the collection of ibn al-Mundhir reveals regulations like: they had consensus that ablution with water is permissible. 67 Even with this nature of text, the editor of the work had to correct these ijmāʿ claims by writing in the footnotes the khilāf about them. Ijmāʿ, as far as law is concerned, was an issue for the uṣūlī, not the faqīh. It is not an issue for the jurist to help him make a fatwa; it is an issue for the uṣūlī to discuss it within a different universe of discourse. The discourse of uṣūlīs is not mainly concerned with the rulings; it is concerned with the philosophy of law, and its rationalization. The uṣūlī was distinguished from the faqīh in the discussion of ijmāʿ. For instance, al-Ghazālī stated that the sanctioning of ijmāʿ is the work of the uṣūlī. He tolerated the faqīh only if he is mubarraz, prominent. It is important to situate ijmāʿ within the right discourse, to which it belongs. It belongs to the theoretical discussion of law, its academic sphere, not to its practicality, and use.
Ijmāʿ has also a very important function within the whole structure of law. There has to be a concept that balances, if not in reality, then at least in theory, the growing, and ever-expanding concept of khilāf. It completes, from the rational point of view, the theoretical structure of law. Besides, it provokes significant discussions within the community of the uṣūlīs. The contestation of different ideas about consensus helps scholars to develop, rationalize, and concretize their different schools. That does not make it a less significant concept; it just does not make it the most applied concept in the philosophy of law.
Sociologically, the political system of Muslims had to develop from concentric circles of representation, and consultation that have the Prophet/Caliph in its center to a more de-centralized system that helps distributing and regulating spheres of authority and socialization. The model of the Prophet who has the political and religious power, who guides the community because of his relation to the divine could not continue for long decades. His power, like ijmāʿ, went to the companions, and from them down to the next generation. New generations of scholars were emerging and replacing older authority figures not because of their connection to an earlier generation, or the Prophet himself, but because of their scholastic skills. Politically, there was a Caliph who was trying helplessly to maintain the older nature of authority, which the Prophet, or the Rāshidūn enjoyed. Shiite Islam opened a space to articulate infallibility through the Imamate system. That was not the case in Sunni Islam, where it was limited to a theoretical space: ijmāʿ al-ummah. If the Shiites have the house of the Prophet, the Sunnis have al-jamāʿah; they are ahl al-sunnah wa al-jamāʿah.
Ijmāʿ emerged on a background of civil war, as I wrote earlier. Sociologically, it had to project a central value in Islam: social unity. In his talking about ijmāʿ al-Shāfiʿī wrote, He said: so, what is the meaning of the Prophet's directive to abide to their group, jamāʿah? I said: it has but one meaning. He said: how could it have only one meaning? I said: if their group is spreading in different countries, then no one can be with a group whose bodies are dispersed. And bodies when exist they exist with bodies of Muslims and non-Muslims; pious, and immoral. So, gathering as bodies has no meaning [as jamāʿah,] for it is impossible, and because the gathering of bodies signifies nothing. This gathering has no meaning. It is [the abide to] what their group embraces of knowing the permissible, and the forbidden, and the obedience in these matters [that matters.] That who holds what the group of Muslims says is gathering with this group. That who disobeys what the group says will be leaving the group he was ordered to abide to. 68 This is, then, the social unity that was not possible physically, but could project in the moral imagination of the group. In this sense, ijmāʿ played a role similar to that of modern national identity: creating a discourse of unity that is rooted in the social imaginaire of the group.
Scholars did possess power and did exercise it. However, that never happened in a social vacuum, where scholars make a formidable class that can take final, and indisputable decisions. The exploration of the classic theory of ijmāʿ reveals the great size of khilāf among scholars themselves. The community had different proposals, and without their confirmation ijmāʿ cannot pass. Community leaders too, some of them were ṣūfī leaders, frequently challenged the authority of the scholars. With no modern bureaucracy, and modern means of administration, scholars had to appeal to the community at large to get their authority approved. Dissidence among scholars did happen and was condemned by scholars. However, dissidents had at their disposal a number of means to negotiate the scholars' ijmāʿ. For instance, they had the literature of khilāf of the scholars themselves. Ibn Ḥazm regularly relied on this strategy to the point that made some of his students confused about his own doctrine, as he used to refute some scholars' claims by using other scholars' claims, giving a false impression that those claims are his own. Dissidents could also appeal to the community, or segments of it. They could ally to different political powers. They could appeal to those who have the economic means to support their work. More importantly, they could always rely on the naṣṣ, which is less likely to fail them. The ẓannī meaning of Quʾārn, and the ẓannī thubūt of ḥadīth would make it easier for them to initiate new doctrines. Ibn Ḥazm, Muḥammad ʿAbdul-Wahhāb (1703-1792 CE), and modern scholars, like Muḥammad ʿAbduh (1849( -1905 are but a few examples of creating schools outside the realm of consensus. Goldziher wrote about the community's power to sanction consensus through the social tradition. He reflected on al-mawlid al-nabwī as an example of bidʿah, or an innovation, that through social consensus turned into sunnah, or tradition. 69 He also explained the dual position of al-Ghazālī using ijmāʿ to create sunnah, and ibn Taymīyah (1263-1328 CE) using sunnah to refute ijmāʿ, a strategy ibn ʿAbdul-Wahhāb would use centuries later on. 70 The theological aspect of ijmāʿ is no less curious. Goldziher, in Introduction to Islamic Theology and Law, introduces a bi-fold argument: ijmāʿ came to be the central determinative factor of making the orthodox community; and Sunni Islam is based on ijmāʿ as much as Shiite Islam is based on authoritarian principle. 71 Stewart explains, develops, and modifies this argument. He agrees with Makdisi that ijmāʿ was used in the negative sense: not to state who could be included within the orthodox community, but to exclude those who would not be a part of it. However, he finds it partially true, as ‚for the majority of jurists in the recognized Sunni madhhabs from the tenth century on, consensus represented orthodoxy. As the legal profession gained in power and influence, this version of orthodoxy, one among several espoused by claimants to religious authority, came to dominate Islamic religious discourse.‛ 72 He further stresses his argument by writing, ‚While it is true that Islam does not have sacraments, a priesthood, or an ecclesiastical hierarchy, many well-defined groups, including that of the jurists, have acted as religious authorities during one historical and geographical context or another. They may have disagreed with other competing groups as to their legitimacy and jurisdiction, but they nevertheless have claimed, and exercised, the right to decide questions of acceptable and unacceptable belief.‛ 73 We cannot agree any more with Stewart, except that he does not tell us to whom their decisions of belief and unbelief will be directed. The essential question is: was this power exercised in terms of writings and discussions, or in terms of interrogating political institutions that have the power to subject individuals to confessions, and, then, execute punitive measures against the unbelievers of them. The latter case did happen, indeed, but, never in any institutionalized manner, and always within a specific, more important political context.
Stewart also introduces a compelling argument: the orthodoxy/orthopraxy dichotomy proposed by some scholars to argue that in Christianity theology is the main concern, while in Islam it is law, this dichotomy, is baseless. He refers this confusion to the wrong conflation of two dichotomies: theology/law, and belief/practice. 74 We can accept the first dichotomy, but not the second. Stewart wants to rescue the belief element within the law. He introduces the example of drinking alcohol: if a Muslim believes drinking it is permissible, then he would be excluded from the community; if he just drinks it, he will only be sinful. 75 Again, we cannot agree more with Stewart. However, we have to accept his invitation to explore this belief element in Muslims' law.
Three areas, I argue, can display the penetration of theology to the corpus f law. First, there is the area of terminology. We brought earlier these phrases: mumkin ʿādatan, al-ʿādah tuḥīl and altaṣawūr. All these phrases had their roots in theological discussions. Theologians argued that in Islam we may find what is mustaḥīl ʿādatan, usually, normally or ordinarily impossible, but never what is mustaḥīl ʿāqlan, rationally or logically impossible. Here, the possible and the impossible are posed in intersection with the regular and the rational. Jurists wanted Muslims to believe 73 Ibid.,45. 74 Ibid.,[46][47]47. in the possibility and legitimacy of consensus-that is the possibility of an agreement on a certain issue by a united ummah, not necessarily the practice of it. Their method of sanctioning consensus as a source of legislation had to go through theology. It is belief, after all, that made the Qurʾān and sunnah sources of legislation. Other sources, like qīyās, could be authorized because they are rooted in these two textual sources. Ijmāʿ failed this test. Jurists were aware that the basic problem of ijmāʿ is how to situate it in theology -how to make it an element of belief, since it could not be clearly rooted in the text. They had to rely on the lexicon and methods of speculative theology, not rational law. Believing in ghayb, the basic argument went: it could be mustaḥīl ʿādatan, but it is not mustaḥīl ʿāqlan. Like ghayb, ijmāʿ was considered to be not impossible rationally, mustaḥīl ʿāqlan, if it is impossible ordinarily, mustaḥīl ʿādatan.
In discussing consensus, theology is significant in a second area. It is the fine distinction between ʿilm and ʿamal, or belief and practice. After framing ijmāʿ in theological terms, jurists had to reverse the process, and study the effect of ijmāʿ on theology itself. Al-Zarkashī writes that al-Bazdawī 76 , and some Ḥanafī jurists put ijmāʿ of Companions, ijmāʿ of next generation, and ijmāʿ preceded by khilāf in the status of mutawātar, mashhūr, and āḥād of Ḥadīth consequently. In regard to the two questions of ʿilm and ʿamal, there are four opinions: both of ʿilm and ʿamal are wājib; none of them is wājib; ʿilm is wājib if there is an absolute agreement about it; and ʿilm is wājib if it is the ijmāʿ of Companions. What is at stake here is a cautious and calculated use of ijmāʿ, so that it maintains its moral power in the possibility of a united community protected from falling error, but without abusing its power in the realm of law or theology.
The third area that needs further study is the concept of ḥaqq, truth, a concept that makes the heart of theology. Al-Zarkashī raises the traditional question about ḥukm, ruling, is it qaṭʿī or ẓannī? Does a ruling of law reflect truth or not? The agreement of jurists is that rulings could be based on ẓann, but their sources have to be qatʿī. Things go all complicated with ijmāʿ. The ruling of this source had to be true, because al-ummah, in its wholeness, is supposedly protected from falling in error, but the source itself is, unfortunately, ẓannī. The only way to get out of this problem is to base the source in its own practice. This is the ugly circular argument, whose inconsistency could not be ignored by jurists. This is why Al-Zarkashī decided that ijmāʿ had to be based on mustanad. He wrote, ‚If *ijmāʿ] was sanctioned without mustanad, it would be a creation of religion after the Prophet; and it is false.‛ 77 Al-Zarkashī, however, was not particularly interested in this angle while discussing the truth of ḥukm. In this passage, the theological question of truth is brought to the ruling of law, not to one of its foundations. Al-Zarkashī quotes ibn Burhān in his statement that al-ḥukm is always qaṭʿī. Ibn Burhān states that al-ẓann in al-sharʿīyāt occupies the same status as that of al-ʿilm al-qaṭʿī in al-qaṭʿīyāt. Al-Zarkashī objects and states that al-ḥukm could be either qaṭʿī or ẓannī. It is no problem that Sharīʿah is full of ẓannīyāt, for they eventually rely on qatʿīyāt. He refers to the reliance of probabilistic rulings on definitive foundations of legislation. This discussion immediately invites a series of theological questions, for instance, what is al-ḥukm of God; could God have a more than one true ruling in a single situation; and what is the required work of us, altaklīf al-wājib? After a long discussion, he decides that God has one true ḥukm. The mujtahids have to exercise ijtihād to know it. Once they know it, al-taklīf al-wājib will be to submit to this ruling. However, if they miss it, they will be submitted to a different ḥukm because this is now a new situation; the new situation is conditioned with their missing the first ḥukm. Accordingly, they will have a new taklīf wājib to submit to it. In short, "wujūb al-ʿamal bimuqtaḍa al-ẓann qaṭʿī,‛ 78 or the obligation to work according to uncertainty is certain!

Conclusion
There are three points that I want to highlight in this conclusion. First, there is obviously a large corpus of contradictions relevant to each aspect of ijmāʿ, whether its authority, textual foundations, identifying those who issue it, its recognition, or its timeframe. Facing these contradictions, the modern, mostly Western, scholarship seems exhausted as it desperately tries to identify the essence of ijmāʿ and define its truth, so that it reaches what is called a well-defined and concrete ijmāʿ. I am saying neither that this scholarship has been selective in presenting ijmāʿ as theorized and debated among Muslim scholars, nor that the arguments and statements that developed out of this presentation lacked strong evidence. Take the issue of ʿiṣmah, infallibility, as an example! George Hourani writes that ‚with all these faults, it did not fall entirely out of sight, for it did support, however vaguely, the major idea in classical thought about consensus, the idea of its infallibility.‛ 79 Wael Hallaq explains that Hurgronje furthers this argument much more. Hallaq writes, ‚In sum, Hurgronje's contention seems to be that in the final analysis consensus was the ultimate authority on interpreting, understanding, and authenticating the Qurʾān and the Sunna, and that the 'foundation of foundations' of Islam was the selfproclaimed infallibility of the community.‛ 80 We move from a claim that in spite of the obvious weakness of ijmāʿ, there came to existence a concrete principle of infallibility, to a much stronger claim that this principle of infallibility became the foundation of foundations of Islam. Hallaq takes the argument one further step by granting ijmāʿ political power, as it is claimed by several modern scholars. Hallaq writes, ‚Unlike the theory of Shāfiʿī, which recognized as infallible only the consensus of the community when based on a reliable text, the great majority of later jurists held that infallible consensus is the consensus of the mujtahids (the qualified jurists who are authorized to discover the law) on any case of law, including case solved by means of qiyas which may take its premises from ahadi traditions.‛ 81 Hallaq quotes Shawkānī (1759-1834 in Irshād, but the quote, that is placed in the footnotes, reads, ‚Consensus is the agreement of the mujtahids of the community of Muḥammad < on a certain matter in a certain age.‛ Where is any mention of ʿiṣmah here? What this article finds problematic is a movement within the modern and Western scholarship, a movement that we see quite frequently, a movement to turn a corpus of tradition that includes gaps and contradictions into a set of coherent conclusions that turn quickly into political power so that everything becomes selfexplained: this group produced these ideas so that it monopolizes this power and exercises it against its competitors. ʿIṣmah was indeed mentioned in classical texts, but in passing, in a context of contradictory arguments and never to claim any divine infallibility to the community. Where in Sunni fiqh or theology, could we find a separate and coherent discussion of ʿiṣmah? In articulating ʿiṣmah, Hallaq quotes al-Qarāfī (1228-1285 CE). Al-Qarāfī, however, discusses ijmāʿ in long pages, brings all arguments that support or deny infallibility equally, and admits the lack of a single evidence on ijmāʿ that is strong enough to legitimize it by writing that its legitimacy is grounded in the induction of several pieces of texts from the Qurʾān and Ḥadīth in addition to the lives of the Companions. 82 The community, even in its generality, is not sacred, or a site for a historical revelation of divinity as it is in Judaism. Al-Shāṭibī in Al-Muwāfaqāt explains ʿiṣmah by arguing that the Ummah is protected from error because God promised the preservation of His religion, and not leaving it to the people. It is God, again, Shāṭibī argues, who is responsible for making scholars, and who take care of each of the Islamic sciences. 83 The repeated notion that ijmāʿ was used to legalize new rulings and guarantee their perpetual validity is absurd, since in reality it only confirmed the already recognized minimum necessary for each individual to claim Islam.
The second point is an emphasis on the significance of theology in understanding ijmāʿ. As I showed above, theology can be found in the terminology that is used in discussing ijmāʿ, in the distinction between belief and action, as well as in the articulation of the notion of truth. In Al-Mustaṣfa, al-Ghazālī, responding to the question of authenticity of aḥādīth al-āḥād, writes, ‚Sanctioning an action, once there is khabar, narration, (that dictates this action) is one thing; whether this khabar is true or a lie is a different thing.‛ 84 In other words, taklīf, legal responsibility, is grounded in the mere existence of khabar, not in its truthfulness, once your best guess is that this khabar is likely true. 85 Muslim jurists established several legal principles that circle around ghālib al-ẓann, or 'predominant probability.‛ For instance, there is this rule: what should be considered is the predominant, the most frequent, not the rare. 86 When two elements mix, the rule is based on the predominant.
The legal examples are countless. People are expected to lose focus in praying for sometime, to go to pilgrimage, and not forget to buy gifts and commodities that are not available in their native country, or to use water to perform ritual purity, even though the water is obviously not clear. In all these cases, the legal ruling is based on the predominant probability, ghālib al-ẓann. Interestingly, al-Ghazālī argued that even the rational evidence, that is deduction, is based on probability, since the universal is deducted from an examination of many, or perhaps most, but never all, of its particulars. 87 Unlike this relaxed position that admits and tolerates the lack of truth, we find a relentless chasing of such a truth in the modern Western scholarship of Islam. What Muslims have repeated for centuries about ijmāʿ is identical to their statements on ghayb: it is ordinarily impossible, but logically not impossible, or mustaḥīl ʿādatan ghayr mustaḥīl ʿaqlan. Their focus was not the truth of ijmāʿ but its practical consequences, and that leads us to my third point.
The third point is the emphasis we find in the writings on ijmāʿ on its practical aspects, not its ontological essence. The main question that busy Muslim scholars is not about ʿiṣmah and whether it reveals the true intention of God. The main question is what should we do have all Muslims agreed upon a ruling? The simple answer is to follow them, for accurately identifying the intention of God is not a requirement in ijtihad. The assemblage of several evidences, none of them is strong enough to prove ijmāʿ, might not be enough to our modern standards. However, this assemblage, this jamʿ, which is more important than ijmāʿ as I argued in my upcoming article on jamʿ 88 , is enough to legalize ijmāʿ.