Define Ijma' (consensus) and explain its different kinds. Can legislation by a parliament of an Islamic state be regarded as a valid consensus?

Introduction

Ijma', the consensus of scholars, is the third source of Islamic law after the Quran and Sunnah. In the past, it took shape gradually among scholars across the Muslim world. Modern Muslim states now have elected parliaments which make laws for whole populations, and this raises a difficult question: can a legislature's decision count as Ijma'? Allama Iqbal gave one of the best-known answers, but the question remains debated.

Definition and authority of Ijma'

Definition

Linguistically, Ijma' means determination and agreement. Technically, it is the agreement of the qualified mujtahidun of the Muslim Ummah, in any one age after the death of the Prophet ﷺ, on a question of Shariah.

Authority

Scholars rely on verses such as the following, and on the report: "My Ummah will not agree upon error" (Tirmidhi, Ibn Majah), the chain of which has been criticised, though many regard the meaning as well established.

وَمَن يُشَاقِقِ ٱلرَّسُولَ مِنۢ بَعْدِ مَا تَبَيَّنَ لَهُ ٱلْهُدَىٰ وَيَتَّبِعْ غَيْرَ سَبِيلِ ٱلْمُؤْمِنِينَ …

"And whoever opposes the Messenger after guidance has become clear to him, and follows other than the way of the believers…" (An-Nisa 4:115)

كُنتُمْ خَيْرَ أُمَّةٍ أُخْرِجَتْ لِلنَّاسِ تَأْمُرُونَ بِٱلْمَعْرُوفِ وَتَنْهَوْنَ عَنِ ٱلْمُنكَرِ …

"You are the best nation produced for mankind. You enjoin what is right and forbid what is wrong…" (Aal-e-Imran 3:110)

Conditions

Participants must be qualified, the matter must concern Shariah, there must be a basis in the sources, and it cannot contradict a clear text.

Kinds of Ijma'

*1. Explicit (Sarih).* All the mujtahids state their view openly. It is the strongest form, as with the companions' agreement on compiling the Quran.

*2. Tacit (Sukuti).* Some state a view, and the others remain silent, despite knowing of it. Scholars differ on its force. Many Hanafis accept it under conditions, while Imam Shafi'i is commonly reported to have rejected it.

3. Ijma' of the companions

Most scholars consider this most reliable, since they were few and known, and they were close to the revelation.

4. Ijma' of the people of Madinah

Imam Malik accepted this, since their practice preserved the Sunnah. Others did not agree that it constituted Ijma'.

5. Classification by transmission

A consensus known through mass transmission (mutawatir) is stronger than one known through a few reports (ahad).

Can parliamentary legislation be a valid Ijma'?

Arguments in favour.

1. Iqbal's argument

In the sixth lecture of The Reconstruction of Religious Thought in Islam, Iqbal argued that the transfer of the power of Ijtihad from individual representatives of schools to a Muslim legislative assembly is "the only possible form Ijma can take in modern times". He said that this would allow lay people with insight into affairs to contribute as well, while scholars might assist as a vital part of it.

2. Collective representation

An elected assembly represents the people, which fits with the Quran's emphasis on consultation in collective affairs.

… وَأَمْرُهُمْ شُورَىٰ بَيْنَهُمْ …

"…And whose affair is determined by consultation among themselves…" (Ash-Shura 42:38)

3. Practical authority

Classical Ijma' lacks any mechanism to discover or enforce it, whereas parliament has a clear procedure and legal authority. Laws must be enforced by the state, and a ruler may adopt one legal view to end a dispute: the principle that "the ruler's decision settles disagreement" (hukm al-hakim yarfa' al-khilaf).

4. Complex issues

Banking, taxation and governance need the input of experts from many fields, not of jurists alone.

Arguments against.

1. Qualification

Classical Ijma' requires mujtahids. Most parliamentarians lack knowledge of the Quran, Sunnah or legal theory, and they are elected for other reasons.

… وَلَوْ رَدُّوهُ إِلَى ٱلرَّسُولِ وَإِلَىٰٓ أُو۟لِى ٱلْأَمْرِ مِنْهُمْ لَعَلِمَهُ ٱلَّذِينَ يَسْتَنۢبِطُونَهُۥ مِنْهُمْ …

"…But if they had referred it back to the Messenger or to those of authority among them, then those who can draw correct conclusions from it would have known it." (An-Nisa 4:83)

2. Majority is not consensus

Ijma' requires agreement, or at least near-unanimity. A parliamentary law may pass by a small majority, with opposition from many, and may be repealed by the next parliament.

3. Local, not universal

Ijma' traditionally refers to the entire Ummah, whereas a parliament represents one nation. Laws passed in Lahore or in Cairo cannot speak for all Muslims.

4. Political interests

Legislation may reflect party discipline, foreign pressure or personal interest, and these are unlike a scholarly search for the truth. Elections in many Muslim countries are also disputed.

5. Limits

A parliament could not lawfully contradict a clear text, even with unanimity.

A balanced view.

Strictly speaking, a parliamentary law is not Ijma' in the classical sense, since it lacks the required participants, universality and permanence. It may be better classified as a form of collective Ijtihad (ijtihad jama'i) or as a lawful decision by those in authority (ulu al-amr). Muslims should obey such a law within its limits, so long as it does not command sin. Iqbal's proposal, too, was not a claim that any majority vote automatically binds the Ummah; he recognised the risk of error, and he suggested that scholars have a supervisory role, while acknowledging that this might be a temporary measure.

يَٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟ أَطِيعُوا۟ ٱللَّهَ وَأَطِيعُوا۟ ٱلرَّسُولَ وَأُو۟لِى ٱلْأَمْرِ مِنكُمْ …

"O you who have believed, obey Allah and obey the Messenger and those in authority among you." (An-Nisa 4:59)

A law passed with the wide agreement of the people's representatives and scholars, and accepted over time by the wider community, might thus come close to the spirit of consensus for that society, without carrying its full force.

Pakistan's experience

The Constitution

The Objectives Resolution, now Article 2-A, states that Allah's sovereignty is exercised through the people's chosen representatives, within the limits prescribed by Him. Article 227 prohibits laws repugnant to the Quran and Sunnah.

The Council of Islamic Ideology

(Articles 228–231) advises parliament, though its recommendations are not binding, and many have not been acted on.

The Federal Shariat Court

(Article 203-D) may strike down laws found repugnant to Islam, as in its riba judgment of 2022.

Examples

The Second Amendment of 1974, adopted unanimously after long debate, has been presented by some as approaching an Ijma'-like decision. Conversely, the Muslim Family Laws Ordinance of 1961, the Hudood Ordinances of 1979, and the Women's Protection Act 2006 caused strong disagreements, which illustrate the difficulty of achieving consensus on these matters.

Proposed framework

1. Qualified input

Parliamentary committees should work with scholars, lawyers and economists.

2. Wider public consultation

Laws on religious matters should be debated publicly before being passed.

3. Stronger Islamic ideology institution

The Council's membership should be representative of different views and experts, and its reports should be debated in parliament.

4. Education for legislators

Briefing and research support can make their contribution better informed.

5. International collective Ijtihad

Bodies like the OIC's International Islamic Fiqh Academy can provide wider Muslim perspectives.

6. Humility

Any law should be treated as a human interpretation, open to review as circumstances change.

Conclusion

Ijma' is the agreement of qualified scholars on a Shariah matter, and it may be explicit or tacit, with various other classifications. Parliamentary legislation cannot be regarded as Ijma' in the strict classical sense, since legislators are not all mujtahids, majorities are not consensus, and national laws are not universal. Yet Iqbal was right that the modern Muslim community needs a representative institution for collective reasoning. A parliament guided by scholars and acting within the Quran and Sunnah can provide a legitimate form of collective Ijtihad, which is binding as law in its own state, and open to correction.

The writer can be reached at ma6749429@gmail.com