1 – The Ijmaa’ is not convened except upon a relied upon basis (Mustanad) that the people of Ijmaa’ rely upon. This is the view of most of the Fuqahaa’ and the ‘Ulamaa of Usool ul-Fiqh. That is because the people of Ijmaa’ do not come up with new Ahkaam without a Daleel and that is due to the right of bringing legislation belongs to Allah Ta’Aalaa and the Nabi (saw) whom Allah Ta’Aalaa revealed divine inspiration to.

The ‘Ulamaa have agreed upon the permissibility for the rested upon basis (Mustanad) for the Ijmaa’ to be the Kitaab and the Sunnah. The following are some examples that they brought to show the linkage to the Ijmaa’:

Allah Ta’Aalaa said:

An Ijmaa’ was convened in respect to the intended meaning of ‘mothers’ is the roots or origins of women like grandmothers and great grandmothers and that the intended meaning of daughters are the branches of the women like daughters, granddaughters from daughters and sons and their daughters.

Their Ijmaa’ (consensus) in respect to giving the grandmother a sixth from the inheritance because the Messenger (saw) gave the grandmother a sixth.

* They have differed in respect to the rested upon basis (Mustanad)

of the Ijmaa’ being a Qiyaas (analogy) into a number of views:

A – Forbiddance of Qiyaas being used as a basis for Ijmaa’ because the faces (types) of Qiyaas are different.

B – That all types of Qiyaas are permitted to be a basis for Ijmaa’ because it represents a Hujjah Shar’iyah that depends upon the texts.

C – The opinion that it is permissible for Qiyaas to be a rested upon basis for Ijmaa’ if the Qiyaas is based on a textual ‘Illah or if the ‘Illah was clear. If it was not based on a textual ‘Illah (reason) and was not clear, then it is not permissible for Qiyaas to be a rested upon basis for the Ijmaa’. Examples that have been provided to show that Qiyaas had been a relied upon basis for Ijmaa’ include the Ijmaa’ AsSahaabah upon the Khilafah of Abu Bakr (ra) based on analogy of his Imaamah (leading) of the Salaah to the point that it was said: “The Messenger of Allah was content with him in respect to the matter of our Deen so should we not be content with him in the matters of our Dunyaa?”.

2 – Some people permitted the convening of Ijmaa’ without a rested upon basis (Mustanad) i.e. without a Daleel Shar’iy. They said that it is possible and reasonable that Allah inspires the Mujtahideen to come together upon what is correct and grant them Tawfeeq to come out with the correct Hukm after having studied and examined the Mas’alah (issue) that has been presented before them in a thorough and complete manner.

3 – The Mustanad (rested upon basis or source) of Ijmaa’ AsSahaabah is the Daleel Ash-Shar’iy like the Qawl (speech) of the Messenger of Allah (saw) or his Fi’l (action) or his Taqreer (consent).

And that the Sahaabah (rah) who agreed upon the Hukm had come across this Daleel that indicates and guides to the Hukm whilst the Daleel (itself) did not reach us.