Consensus: what it says about early jurists

al‑Shāfi‘ī is perhaps the first to propose/record the utility of consensus (ijmā‘) as a source of Islamic law in his al‑Risālah, arguably the first treatise on the principles of Islamic jurisprudence (or uṣūl al‑fiqh, as the discipline is known in Arabic). The idea is that in the absence of Qur’anic text or ḥadīth concerning a matter, the community’s consensus on a particular position represents the divine intent, and as such should be considered a binding source of law.

 

History tells us that consensus is virtually impossible to achieve. Even though al‑Shāfi‘ī required consensus of the whole community of believers, his successors limited the scope of the required consensus to the community of scholars. Next, who is a scholar and who is not is a perpetual debate too. Yet people have too often described their positions as the fruit of consensus in the recent and remote Islamic history.

 

Besides the impossibility and misuse of consensus, I cannot help notice that, once recognized as a source of law, it would necessarily result in institutional inertia that resists change when it is due. As Bonderman notes, time has proven that the

four-fold system [consisting of Qur’an, ḥadīth, consensus and analogical reasoning] for derivation of legal rules provided its own inherent formula for stagnation: while the earliest scholars had had only the sporadic legal verses of the Quran and the few traditions of their period to guide their otherwise unrestrained independent reasoning, after a time, with the achievement of a local or widespread consensus on some points, and later on vast fields of doctrine, the scope for individual reasoning became more and more limited.

Similarly, Schacht notes that

the principle of the infallibility of the consensus of the scholars worked in favor of a progressive narrowing and hardening of doctrine; …and, a little later, the doctrine which denied further possibility of “independent reasoning” (ijtihād) sanctioned officially a state of things that had come to prevail in fact.

The principle of ijmā‘ or consensus could not but favor status quo. It would not be wrong to say that people who argued for consensus to be recognized as a source of law were conservative: they would err on the side of convention instead of taking an “adventurous” new position. The early jurists wanted stability and permanence in the growing enterprise of Islamic law, but they did not realize that the world was going to change! And how is one to blame them, for the world really did not change so much and so fast for centuries as it did in the last few decades. Nevertheless, such outlook has seriously limited the potential of Islamic fiqh or jurisprudence to creatively address new issues in changing times.

 

Will the conservative outlook of early jurists forever determine the character of Islamic fiqh? If al‑Shāfi‘ī or another charismatic jurist in early Islamic history were adventurous, would the practice of Islamic fiqh have taken a different course? Or was a conservative outlook the only historical possibility?