Baber Johansen

29
As to the consensus: it is the agreement (ittifÁq) of the jurists of
the epoch on the legal qualification of an event. Some say:
‘scholars’ [instead of jurists]. That is a definition through that
what is common [to many types of scholars]. Truly, the
agreement of the grammarians, the philologists, and the exegetes
is not an authoritative legal argument, even though they are
scholars. Their assertions do not count when [the legal
qualification of an event] is concerned. What is unanimously
agreed upon as consensus is [a statement on a legal qualification]
on which their formal legal opinion [i.e., the formal legal opinion
of the jurists] concords in clear language. [In case] the scholars
disagreed on the formal legal opinion of one of them or on his
act, and the others remained silent without disapproving it in spite
of the fact that [the information about it] was spread among them,
then it is said: this is [still] an authoritative legal argument, but it
is not a consensus. It is also said: it is a consensus. 83
He returns to the same problem in his Book on Dissent (KitÁb al-khilÁf).
Here he defends the right of the specialists to decide the cases that fall in
their competency:
One does not take into account the dissent of the scholars of the
fundamentals [of religion] and they are the theologians, and not
[the dissent] of the transmitters of ÎadÐth, and the grammarians,
the philologists, those who study arithmetic and geometry, as long
as they do not belong to those who are knowledgeable in the
foundations and the branches of Islamic jurisprudence (bi-uÒÙl alfiqh
wa-furÙÝihi). AÎmad [Ibn Íanbal, d. 855 in Baghdad,
eponym of the Íanbalī school of law] said: ‘The choice [between
options] are admissible only for a man who knows the Book and
[the Prophet’s] normative practice (sunna), [if he is] among those
who, if a problem is raised before them, look into the matter and
compare it to the Book and the [Prophet’s] normative practice
(sunna).’ A group of theologians held that no consensus is
complete except with their concord (muwÁfaqa).