Malik, may Allah be pleased with him, was probably the one of the four Imams who most frequently mentioned consensus and used it as evidence. If you open the Muwatta', you will find in many places that the ruling in the case mentions that it is Òthe generally agreed-on way of doing things,Ó and that was considered to be an evidence which was sufficiently authoritative for him to give fatwa by it. We will give you some examples:
1. The Muwatta' mentions the inheritance of paternal half-siblings: "Malik said, 'The generally agreed-on way of doing things with us is that when there are no full-siblings with them, half-siblings by the father take the position of full-siblings. Their males are like the males of the full-siblings, and their females are like their females except in the case where the half-siblings by the mother and full-siblings share, because they are not offspring of the mother who joins these.'" (27.6) Then he proceeded to the secondary rulings based on this consensus.
2. Another example of that is the inheritance of maternal half-siblings. Malik said about that: "The generally agreed-on way of doing things with us is that maternal half-siblings do not inherit anything when there are children or grandchildren through sons, male or female. They do not inherit anything when there is a father or the father's father. They inherit in what is outside of that. If there is only one male or female, they are given a sixth. If there are two, each of them has has a sixth. If there are more than that, they share in a third which is divided among them. The male does not have the portion of two females." (27.4)
3. Another instance is what the Muwatta' says about the judgement of the sale with the precondition of being free of all defects: "The generally agreed-on way of doing things with us regarding a person ...who sells a slave, slavegirl or animal which is meant to be free of defects is that he is not responsible for any defect in what he sold unless he knew about the fault and concealed it. If he knew that there was a fault and concealed, his declaration that he was it was free of faults does not absolve him, and what he sold is returned to him." (31.4)
4. It is reported that the sale of meat for meat can entail a form of usury (riba al-fadl). Malik said, "It is the generally agreed-on way of doing things with us that the meat of camels, cattle, sheep and similar wild animals is not to be bartered one for one, except like for like, weight for weight, from hand to hand. There is no harm in that. If it is not weighed, then it is estimated to be like for like from hand to hand. There is no harm in bartering the meat of fish for the meat of camels, cattle and sheep and so on, two or more for one, from hand to hand. If delayed terms enter into the transaction, however, there is no good in it." (31/28.67)
In all of this you see that Malik used consensus as authoritative and said, "The generally agreed-on way of doing things with us". We turn to what is quoted from him to discover his explanation of the term, 'agreed-on'. We find that transmitted in what we quoted before in his words in the Muwatta'. Let us see what Malik himself says in explanation of his use of the term 'agreed-on'. We find that he says in the Muwatta':
As for 'the agreed-upon practice', it is something that the people of fiqh and knowledge agree upon without dispute. This is the agreement of the people of this community who contract agreements (ahl al-hall wa'l-'aqd) in any matter. By agreement we mean agreement in word, action or belief.
The definition of the mujtahidun who produce consensus was investigated by Malik as we will make clear.
That is the consensus which Malik took as an authoritative evidence and which you see often used in the Muwatta' in resolving questions about which there is no unequivocal text or when he believes that the text needs to be amplified, or when the text is an ayat whose meaning is of the apparent sort (dhahir) which admits of interpretation and specification.
The discussion of scholars regarding the principles in consensus is extensive and detailed. We do not want to quote them here. Here we will mention what is connected to Malik's fiqh and the different varieties of consensus he used to employ and how authoritative he viewed consensus and its ranks and its basis. In general, we will speak about consensus where it has a a firm connection to our subject: Malik's fiqh.
Before we turn to Malik's view, we will define the case which the books of some of the legists mention: when consensus is advanced before the Book and the Sunna. This case is mentioned by some of the legists and before we clarify how it is invalid, we will mention their explanation of it so that people will not err in understanding, even though we are not happy with any explanation of it.
What they mean is the consensus which is based on the Book or the Sunna, and it acquires strength by that support so that it is given priority over other texts. That is because consensus supports the text. It strengthens it to the degree that it becomes definitive and whatever judgement it contains cannot be denied. Some of them reckon that a person is an unbeliever if he denies a judgement which is established by consensus which is derived from text. That is because consensus based on the evidence of the text to the judgement raises it in the level of something which is understood from the Deen by necessity.
Even when the discussion is interpreted in that way, many scholars do not permit it because consensus of this type is only in fundamental obligations, like the prayer being five, the times of the prayer, fasting Ramadan, the obligation of zakat and so forth. They are obligations established by text and there is consensus on them, and so the texts do not admit of any probability in them. Ash-Shafi'i denied the claim of consensus except in the principles of legal questions and Ahmad ibn Hanbal denied the existence of any consensus except the consensus of the Companions.
The generalised nature of the proposition has allowed some people to oppose some unequivocal texts based on the claim of consensus in questions, whether the consensus in them is a subject of dispute or is not agreed upon at all. The generalisation contains an attack against the texts to support the partisanship for a school. Indeed this generalisation makes some of those who do not understand Islamic fiqh, its principles or the expressions of its writers suppose that it is within the ability of people to agree on something which then it becomes a deen which is followed, even if it opposes the texts and undermines established judgements.
Ibn al-Qayyim refuted that in I'lam al-Muwaqqi'in:
"If someone does not acknowledge disagreement between imitators when there is evidence for it in the Book and Sunna and says, 'This is contrary to the consensus,' this is the one whom Imams of Islam repudiate and censure from every aspect. They refute the one who claims that. Ibn Hanbal said, 'Whoever claims consensus is a liar. Perhaps people disagreed. This was the claim of Bishr al-Marisi and al-Asamm, but he says, "We do not know whether people disagreed or that has not reached us."' He said, 'How can it be permitted for a man to say, "They agreed" when I heard them say they agreed and I suspected them? If only he had said, "I do not know of any who opposes."' He said, 'This is a lie. I do not know that the people agreed. It is better to say, "I do not know of any disagreement about it" than to say, "The consensus of the people." Perhaps the people disagreed.'" (pt. 2, p. 179)
In truth, we do not permit in any case that it be said that consensus in any description is given priority before the Book and the Sunna, even if some of the questions agreed upon reach the level of necessary matters in the Deen. That is because of the position of the unequivocal text which is attested to by consensus. It is based on its evidence, not by consensus alone, especially when some of the Imams permit consensus to be ascribed to indication or analogy. When we advance consensus derived from analogy, then we advance analogy over the unequivocal text, and that is illogical except in the areas which we already have stipulated.
Scholars have agreed that the support (sanad) of consensus can be the Book, mutawatir Sunna, dhahir text of the Book, or a single tradition. When something which is probabilistic in its evidence or its certainty is supported by consensus and there is consensus that judgement is issued according to it, then by that the judgement becomes definitive. The definitiveness comes from the consensus on the judgement derived from the text, not from the text itself. So it is as if the text provides the judgement and consensus provides definitiveness. He mentioned from Malik that consensus can be supported by analogy. Support in it is not confined to a text of the Book or the Sunna. In this case, the judgement derived from the analogy is elevated from the rank of the probable to the rank of the definitive, and that was obtained from consensus, and so it provides definitiveness when it is based on analogy, as it provides it when it is based on single traditions.
There is a case which requires investigation and study of Malik's opinion about it. This is the definition of those whose agreement forms consensus. We will present two points in the explanation of this problem:
1. Malik did not think that the common people were included in the generality of those who constituted consensus. That was because the proofs of consensus were specifically a duty of those who are not the common because the unsupported statement of the common person is of no consequence. Consensus must have a support on which it is based, and that is not conceivable from common people. Furthermore the Companions agreed that the common people are not taken into account and they must follow the men of knowledge.The common are not included in the consensus about them because they do not have the ability to understand it or to form a respected opinion in it. Its basis is investigation based on legal deduction.
2. Who are those of the mujtahidun whose agreement amounts to consensus? Are they the scholars of a certain time in all Islamic locations? Are the people of innovations among the mujtahidun included or not? Or is the consensus taken into account that of the people of Madina about an opinion? In that we are not concerned with the disagreement of the scholars of legal principles in that – that has its proper place in that science. That which concerns us is the opinion of Malik, and scholars disagree about whether his opinion was to consider that consensus was achieved by the consensus of the scholars of Madina or only by the consensus of all. That is the matter which concerns us in the study of consensus. Al-Ghazali said in al-Mustasfa:
"Malik said: 'The authoritative source is only the consensus of the people of Madina.' He said that the people considered for consensus are the people of the Haramayn: Makka and Madina, and the two cities: Kufa and Basra. Those who deduce mean by this that these locations comprised the people of hall wa'l-'aqd in the time of the Companions. If Malik meant that the people of Madina included all of them, then that is accepted if it is comprehensive. Thus actual place has no effect. That would not be accepted. Madina did not contain all of the scholars, either before or after the Hijra. They were constantly dispersed in journeys, expeditions and garrisons. So there is no sense in the words of Malik unless he says that the action of the people of Madina is authoritative because they are numerous and there is consideration of the statement of the majority or a a statement which indicates their agreement in word or action that they relied on something definitive which they heard. The abrogating revelation was revealed among them, and so the fine points of the Shari'a do not elude them. This is accurate since it is not impossible that someone else heard a hadith from the Messenger of Allah, may Allah bless him and grant him peace, on a journey or in Madina, but he left it before he transmitted it. So the authoritative source is in the consensus and not a consensus." (pt. 1, p. 187)
Al-Ghazali stated that consensus in Malik's view is only that which is formulated by the fuqaha' of Madina, and that he does not include anyone else with them. He vindicates that statement by the fact that in the Muwatta' whenever Malik used the agreement of the scholars about a matter as evidence, he says, "This is the generally agreed-on way of doing things with us." If you examine the Muwatta', you will find the word "with" ('inda) follows "generally agreed-on." There is no doubt that "'inda" here refers to place, meaning the generally agreed-on way of doing things in Madina. That is also supported by the fact that in his letters and in his fiqh, Malik used to consider other than the people of Madina as being subservient to them in fiqh. The logic of his position demands that what they agree on be considered consensus. Thus consensus and the practice of the people of Madina are the same type of evidence, i.e. that which the people of Madina have is consensus and that consensus is the consensus of their fuqaha' rather than others.
However, we find that in his Usul al-Qarafi lists the forms of evidence, and counts consensus as one proof and that which the People of Madina have as a different form of evidence. He says "Evidence is: the Book, the Sunna, the consensus of the Community, the consensus of the people of Madina, analogy, the statement of the Companions, masalih mursala and istishab."
He speaks about consensus and mentions Malik's views on it which indicate that he considered consensus as one of the sources of the Shari'a other than the consensus of the people of Madina. At the beginning of the discussion on Malik's usul, we mentioned what was said by the mujtahidun in Maliki fiqh. They ennumerated the forms of evidence and counted consensus as an independent root separate from the consensus of the people of Madina.
We cannot say that all the Malikis follow the method of al-Qarafi which I quoted from at the beginning of our discussion on his principles. Indeed, we found that in his Fatwas, Shaykh 'Ullaysh stated that the Malikis say that the agreement of the people of Madina is what Malik considers consensus. That is why he said:
"There were in Madina the Imams of the Followers who were not in other places – like the seven fuqaha', az-Zuhri, Rabi'a, Nafi', and others. That is why the Imam referred to them and considered their agreement to be consensus. Consulting consensus and using it as evidence is not imitation. It is ijtihad itself. This is self-evident and Ibn al-Hajib stated that."
He said about comparing a single tradition with the action of the people of Madina:
"You know that the people of Madina are loftier, more numerous and have more knowledge than others. Thus it is them who must be consulted to when there is disagreement. When a hadith is sound and the practice of the people of Madina differs from it, one of the following must apply: they are all judged to be ignorant, which is something an intelligent man is too shy to utter since those are the most knowledgeable of the Imams and bad opinion is iniquity; or they are judged to be deliberately in opposition to the Sunna and playing around, which is worse and more foolish; or they are judged to possess knowledge and action, and thus when they abandoned a hadith, they left it for something stronger. This is what we claim. It is known that consensus is a proof which must have a support which may be known or not known. Their agreement was from something reliable since there is no way to call them ignorant or misguided. So the clear truth is evident to you if you accept. Those whose action the Imam used as evidence were the Followers whom he met, and they did not leave the path of the Companions." (Fatwas of Shaykh ÔUllaysh, pt. 1, p. 43.)
This clearly indicates that Malik considered the agreement of the people of Madina to be consensus and authoritative. When it is added to what we quoted from al-Ghazali and his explicit expression in the Muwatta' when consensus is used as evidence (the generally agreed-on way of doing things with us), that results in the conclusion that the consensus which is used as evidence by Malik is the consensus of the people of Madina.
This is a logical result of his considering the agreement of Madina to be binding evidence which must be followed and that it refutes single traditions because when the consensus of the people of Madina is evidence on its own, there would be no need for the agreement of others. If someone considers their agreement alone as binding, it is more fitting that it be binding when they agree with other Muslim scholars. It is also clear that consensus in the view of Malik is the consensus of the people of Madina, and this leads us on to the practice of the people of Madina.
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