An Introduction to Islamic Law Read Free Page A

erudition, rectitude and integrity would have prevented them from remaining silent when an error in language was committed.
    So far, we have discussed the first two sources of the law: the Quran and the Sunna of the Prophet. We now turn to the third source,consensus, which guaranteed not only the infallibility of those legal rulings (or opinions) subject to juristic agreement but also the entire structure of the law. Technically, consensus is defined as the agreement of the community as represented by its highly learned jurists living in a particular age or generation, an agreement that bestows on those rulings or opinions subject to it a conclusive, certain knowledge.
    The universal validity of consensus could not be justified by reason, since Muslims held that entire communities or “nations” could go, and indeed had gone, wrong even on important issues. Consensus, therefore, had to be grounded in theQuran and/or the Sunna. But early attempts by theoreticians to articulate a Quranic basis for consensus failed, since the Quran did not offer evidence bearing directly on it. No less disappointing were the recurrent Prophetic reports which contained virtually nothing to this effect. All that were available weresolitary reports speaking of the impossibility of the community on the whole ever agreeing on an error. “My community shall never agree on a falsehood” and “He who departs from the community ever so slightly would be considered to have abandoned Islam” are fairly representative of the language employed. While a dozen or more of these reports were considered relevant to the issue of consensus’s authority, they gave rise to a problem. Solitary reports are probable and thus cannot prove anything with certainty. Consensus is one of the sources of the law, and must as such be shown to have its basis in nothing short of certain evidence. Otherwise, the whole foundation of the law, and therefore religion, might be subject to doubt.
    To solve this quandary, the jurists turned to the reports that are thematically , but not verbally, recurrent. Although solitary, these reports not only are numerous but, despite the variation in their wording, possess in common a single theme, namely, that through divine grace the community as a whole is safeguarded against error. The large number of transmissions, coupled with their leitmotif, transforms these reports into the thematically recurrent type, thus yielding certain knowledge of an infallible nature.
    Conclusively established as a source of law, consensus ratifies as certain any particular rule that may have been based on probable textual evidence. The reasoning advanced in justification of this doctrine is that if consensus on probable evidence is attained, the evidence cannot be subject to error inasmuch as the community cannot err in the first place. Thus, consensus may be reached on rules that were based on inferential methods of reasoning. However, it is important to note that the cases or rules upon which there was consensus are limited, constituting less than 1 percent of the total body of law. Yet because these cases were subject to this extraordinary instrument, they were deemed especially important.
    There remains the question of how consensus is determined to have occurred. Much theoretical discussion was devoted to this issue, but in practice knowledge of the existence of consensus on aparticular case was determined by looking to the past and by observing that the major jurists were unanimous regarding its solution. And, as we have said, such cases were relatively few.
    Knowledge of cases subject to consensus was required in order to ensure that the jurist’s reasoning did not lead him to results different from, or contrary to, the established agreement in his school or among the larger community of jurists. The importance of this requirement stems from the fact that consensus bestows certainty upon the cases subject to it, raising them to the level of the