Baber Johansen

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between the contingent world and its non-contingent, eternal creator on
the results established by the theologians.
The indicants of the law, such as the interpretation of the QurÞÁn, the
Prophet’s normative practice, and the normative application of analogy
are, therefore, the domain of the jurists. The jurists’ consensus is,
according to most legal scholars, the highest source of the law, because it
is supposedly infallible and, once established, cannot be abrogated. The
question who should participate in the consensus is, therefore, of the
utmost importance for the autonomy of the discipline and the forms of
reasoning to be applied in it. From the eleventh century on, many legal
texts exclude the theologians from the jurists’ consensus.
The eleventh-century Transoxanian Íanafī jurist SarakhsÐ (d. 1090)
writes in his work on legal methodology:
He who is a theologian and does not know uÒÙl al-fiqh and the
legal proofs for [the validity] of the norms, his statement is not
taken into account for the consensus. This [statement] is
transmitted as the position of KarkhÐ [d. 340H/951 C.E., a famous
Íanafī authority in Baghdad, one of the leading Hanafi jurists of
the tenth century]. In the same way, the statement of those who
are transmitters of ÎadÐth and who have no insight in the aspects
of reasoned opinion (raÞy) and the methods of developing legal
standards are not taken into account for the consensus (ijmÁÝ).
Because these scholars, as far as the construction of legal norms is
concerned, are like ordinary people and one does not take into
account the statement of the ordinary man in the consensus of the
scholars of the period, because he has no guidance concerning the
norm that needs to be recognized. He is, in fact, like a mentally ill
person, so that one does not take into account his dissent. 82
Ibn ÝAqÐl develops the same reasoning on a more general basis. He
writes: