Consensus in the Islamic Legal System An Indispensable or a Negligible Source

Abstract

All Muslims regard the Qur’an as authoritative. The Sunnah, on the other
hand, although authoritative to the majority of Muslims, does not enjoy such
universality.1Yet to the Sunnis and Shi‘ahs, both of them are so authoritative
that they are unquestionable sources of Islamic legal system. Thus, they are
sources “from” which Islamic law is directly derived. So what makes “consensus”
(ijmā‘: whether of the Muslim community or of the scholars) such a
compelling candidate for an additional source of the legal system as far as
Sunnis are concerned? I contend that (1) the early jurists viewed this as the
safest way to inoculate and safeguard that system (and the other sources) from
individual abuse and personal manipulation and that (2) without consensus
and why it was originally construed and framed (notwithstanding how it was
applied) by the jurists, the Qur’an and the Sunnah (despite their inherent religious
and theological authority) would be meaningless or inadmissible as
legitimate sources of law. But before I discuss consensus, I would like to address
the two authoritative sources of law.
All Muslims accept the Qur’an as God’s own words and therefore as the
main source of the legal system (fiqh). Before the jurists began to deliberate
and codify fiqh, the Shari‘ah was already embedded in the Qur’an and Muslims
were living their socio-religious and politico-economic lives in accordance
with its teachings. Therefore, when the jurists were ready to put the
laws into written form, they located all its original rules and expounded upon
them. However, universal recognition differs from universal agreement on the
meaning of specific injunctions. In addition, it certainly differs from the claim
that the Qur’an covers every foreseeable legal injunction, for it does not.
For a variety of reasons, the the Sunnah, does not enjoy any universal authority,
among them (1) Some Muslims have questioned how the Prophet’s
teachings have been preserved and passed on, (2) classical and modern scholars
have raised serious doubts about the authenticity of certain hadiths, and ...