Al-Waadih Fee Usool ul-Fiqh by Muhammad Hussein Abdullah

This is when those gathered express or present their opinions explicitly in respect to a given reality from amongst the realities and then they hold a consensus upon which represents the Hukm AshShar’iy for this reality.

An example of this reality is when the people of Ijmaa’ are gathered in a single place and agree upon a single opinion. This is like what happened with the Sahaabah in respect to the delay of burying the Messenger of Allah (saw) so that they could select a Khalifah (successor) to the Messenger of Allah (saw). Most of them (the Sahaabah) were in Al-Madinah and indeed close to the body of the Messenger (saw) and in the Saqeefah of Bani Saa’idah.

Or they could be dispersed and then an issue (Mas’alah) is presented to them one at a time each providing their agreement so that all of their opinions are in agreement upon one single opinion.

Or it could be when one of them passes a judgement in a particular Mas’alah (issue) and that Hukm reaches the others and they then clearly express their agreement either by way of a statement, a verdict or judgment being passed.

This is when one of the people of Ijmaa’ provides an opinion in a Mas’alah (issue) from amongst the Masaa’il (issues), on the basis of it being a Hukm Shar’iy, and no one renounces or disclaims it.

Ash-Shaafi’iy did not adopt Ijmaa’ As-Sukootiy in addition to many of the Fuqahaa whilst some of them considered it as an Ijmaa’ but of a lesser strength as compared to the Ijmaa’ As-Sareeh. In another opinion it was considered to represent a Hujjah (valid legal proof) but not classified as Ijmaa’.

The Ijmaa’ As-Sukootiy in respect to the Sahaabah occurred when one of the Sahaabah held or stated an opinion which the Sahaabah were aware about about and then none of them denounced or denied it. This is considered to (validly) represent an Ijmaa’ (consensus) if the following conditions are realised and met:

1 – That the Hukm Ash-Shar’iy was from that which would (normally) be denounced and the Sahaabah would not remain silent over it because of the impossibility of them remaining silent over a Munkar (a matter that must be denounced and denied). This is like what happened in respect to ‘Umar Ibn Al-Khattaab (ra) when he took the land of Bilaal Al-Muzniy, which the Messenger of Allah (saw) has apportioned to him, after he left it unworked on for more than three years.

2 – That this Hukm became well known and the Sahaabah knew and were aware of it because their silence without being aware of it or knowing about it is not considered to represent agreement or an Ijmaa’.

3 – That the matter is not from that which the right has been provided to the Ameer Al-Mu’mineen to act in accordance to his opinion like the revenues of the Bait ul-Maal (treasury). That is because these matters are from his mandatory powers and jurisdiction which the Shar’a has provided to him based upon the Kitaab and the Sunnah.

- Some considered the Ijmaa’ As-Sareeh to be Qat’iy and the Ijmaa’ As-Sukootiy to be Zhanniy.

The correct view is that the Hujjiyah of Ijmaa’ As-Sahaabah in respect to it being a Daleel Ijmaaliy and a source from the sources of the Ahkaam Ash-Shar’iyah must be Qat’iy and that this is not fulfilled except in Ijmaa’ As-Sahaabah.

As for the Ahkaam derived from the source of Al-Ijmaa’ then they are treated like the Sunnah. It can either be Mutawaatirah in which case it would be Qat’iy Ath-Thuboot in respect to the Sahaabah having agreed and held a consensus upon it, or it can be from the Akhbaar Al-Aahaad in which case it would be Zhanniy Ath-Thuboot.

Working with and acting by the Ijmaa’ is Waajib (obligatory) whether it was Qat’iy Ath-Thuboot or Zhanniy Ath-Thuboot. This is because the Ijmaa’ As-Sahaabah, as we have mentioned, reveals and discloses a Daleel Shar’iy that did not reach us (directly) but rather the Hukm that was based on a Daleel reached us by way of Ijmaa’ As-Sahaabah.

The ‘Ulamaa and Fuqahaa have differed and disagreed in regards to who the people of Al-Ijmaa’ (consensus) are. They therefore set down conditions in respect to who is to be considered to be from the people of Al-Ijmaa’. The following represents some of the details related to this: