The difference in the legal (Shariah) status of tacit consensus (Ijma al-Sukuti) between the Hanafis and the Shafi'is

Abstract

This paper discusses the contentious Question of Ijma al-Sukuti (tacit consensus) and its legal status in Islamic jurisprudence with special attention being given to the opposing interpretations of the Hanafi and the Shafi fi schools of thought. In the interpretation of the Islamic law multiple forms of Ijma exist, one of which, explicit consensus (ijma sarih), is not controversial. The tacit consensus however is a controversial one where scholars do not take a stand over a juristic opinion without necessarily opposing it openly. Hanafis consider such silence, under certain circumstances e.g. when the issue is so well known and uncontested, as evidence, reasoning that silence should be interpreted as consent. On the other hand, the Shafi`i school does not recognize its authority because of the possibility of silence due to ignorance, lack of interest in expressing consent or uncertainty, not fulfilling the definition of ijma as there must be express agreement. The paper will also discuss the Quranic, prophetic, rational and historical evidences that are usually put forward by those supporting either of the two views. Examples of the period of the Companions and early jurists are discussed to bring out the cases in which tacit consensus was cited as testimony. The study also examines the current issues of the application of ijma sukuti particularly in modern areas of law reforming, bioethics and money matters where silence cannot be easily treated as approval because of the complicated nature of issues, and various participation of scholars. Finally, the paper concludes that whereas the Hanafi stance leaves room of legal flexibility by leaving tacit consensus to be proved in limited situations, the Shafi'i school is more cautious and precise with regard to methodology. The two views add value to the usul al-fiqh discourse by providing a variety of methods of deducing rulings. The findings show why inter-madhhab dialogue needs to be encouraged, why collective ijtihad must be fostered, and why the significance of tacit consensus should be well examined to deal with contemporary matters of juristic concern.

Keywords: Ijma al-Sukuti, Tacit Consensus, Hanafi School, Shafi‘i School, Usul al-Fiqh, Islamic Jurisprudence, Legal Methodology