Calder, Norman -- Ikhtilaf and Ijma' in Shafi'i 's Risala

8/12/2019 Calder, Norman -- Ikhtilaf and Ijma' in Shafi'i 's Risala

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Ikhtilf and Ijm' in Shfi' 's RislaAuthor(s): Norman CalderSource: Studia Islamica, No. 58 (1983), pp. 55-81Published by: Maisonneuve & LaroseStable URL: http://www.jstor.org/stable/1595342.

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IKHTILAFAND IJMA'IN SHAFI'I S RISALAThe characteristicaspiration of Islamic jurisprudence1)to encompass ll spheres f humanactivitywas alreadyevidentin the structural ubrics f Malik'sMuwalla' and was explicitlyformulatedby Shafi-i: "There is no event that befalls thepeople of God's din but that thereis an indicator dalil) inthe Book of God as to the path of guidancetherein 48)". (2)This depiction of all human acts and activities as worthy

ofGod's interest nd objectof hiscommandswas a sacralisationof the human condition;but was also and inevitably modeof social control and an articulation f authority. The term'Book ofGod' as used by Shafi-i eferred otsimply o scripture(Quranic material)but ultimately o all forms f divine reve-lation. 3) The limits of that revelation, ts modes and itsvalid principles f interpretationonstitute he subject matterof the Risdla, as indeed of all of Shafi'i's polemical writings.Such epistemological considerationsdefined, however, not

(1) For the intellectual background to the development of Islamic juristicliterature, see Wansbrough, The Sectarian Milieu, Oxford, 1978 and QuranicStudies,Oxford,1977; for detailed analysis ofearly uristic iterature nd a surveyof Sh.fl'i's achievement, see J. Schacht, The Origins of Muslim Jurisprudence,Oxford, 1950.(2) Figures in brackets refer to paragraph numbers in M. ibn Idrts al-ShWfi't,Al-Risdla, ed., A. M. Sh.kir, Cairo, 1309. See also on this point para. 1326; andSchacht, op. cit., 136, n. 6.(3) In the Risdla paras. 53-78 constitute a preliminaryassessment of what ismeant by kitdb lldh,but see also 96-100. See, on typologyofrevelation,Wans-brough, Studies, 51-2, 174-5,

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56 NORMAN CALDERonly the nature and limits of knowledge 'ilm) but definedalso its possessorsand the extentof theirauthority.

Knowledge ('ilm), Shaffi'i sserts, is of two types (961).The first ype is 'ilm 'dmma-the knowledgebelonging o agenerality: t is a knowledge uch that it is not permissibleforan adult who is sane to be ignorant f it. Examples ofthis knowledge nclude the five daily prayersthe fact thatGodexactsfastingnRamadan,thepilgrimage,akdionwealth,the fact that God has forbidden ornication, illing, tealingandwine, nd other hings fthis kind wa-mdfima'ndhddhd),things hat is wherewithGod has charged taklif)his servantseitherto know, or to give, or to abstain from. This typeofknowledge s foundtextually nassan) in the Book of Godor generally ('dmman) amongst the people of Islam (ahlal-isldm);it is transmitted y thegenerality f them('awdm-muhum)from he generality; heyrelate it on the authorityof the prophetof God and theydo not dispute (wa-ldyaland-za'dn) as to its beingrelatednor as to its being incumbenton them. This 'general'knowledge al-'ilm al-'dmm)is thatkind of knowledgewhereinerror s not possibleneitherwithrespect o itsreported ormkhabar)nor nterpretationia'wil),nor is dispute permissible herein wa-la yajiz fihi i-tandzu')(961-965).The second type of knowledge onsists of subsidiarydutiesand questionsofdetail (furd' al-fard'id, hdss l-ahkdm)whichconcernGod's servants;this is a type ofknowledge n whichthere s no scriptural ext (nass kitdb)norwithrespect o mostof it is therea text of Tradition (nass sunna), thoughthereis Tradition (sunna) on part of it. It consistsonly of thereportsof the specialists akhbdr l-khdssa),not those of thegenerality akhbdr al-'dmma). This type of knowledge issusceptibleto interpretationia'wil) and is to be understoodby deduction/analogyqiyds) (966-7). Further, this is adegree of knowledgeto which the generalitydo not attainnor ndeed are all ofthe elite (al-khdssa)charged taklif)withattaining t. With regardto the elite who can attain thisdegreeof knowledge, t is not permissible orall of them, nltot,to neglect t, but if, of the elite, a sufficiencykifdya)



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IKHTILAF ANDIJMA N SHAFIi ''S RISALA 57attainthisdegreeofknowledge, henthosewho have neglectedit incurno sin;butthere s a reward fadl) for hosewho attainit over and against those who neglectit (971). 1)Now, thisexposition fthe natureofknowledgewas workedout as part ofthe dialoguewhichconstitutes he basic literaryformat f Shriff'sRisdla. The function f the interlocutarypersona n this work was to provideopportunitiesfrepetitionand explanation, ntendedto enhanceorclarify he argument.Having heard about the two types of knowledge, he inter-locutor demanded"something f the same kind (ft ma'ndhu)that might tand as analogy (li-yakan qiydsan alayhi)" (972).Shafi'f thereuponproceeded-at a tangent-to discuss thenature of the incumbency f jihdd and nafir =going forthto struggle n the way of God). The incumbencyof jihddwas provedbyreferenceo Qur'an,Scira9, vv. 111, 36, 5, 29 (inthat order,the relevant commandbeing expressedby somederivative ftherootqtl)and by a Traditionfrom heprophet(again using the root qtl, qdtala) (973-6, 977). Sh fi'1 thencited Sura 9, vv. 38, 39, 41 which command a 'going forth'(nfr) in the way of God. Now, these dicta, divine andprophetic,may, accordingto Shafi'l,be taken to implythatjihdd as a wholeand nafir n particular re incumbent n everyobedientservantof God in the same way as prayerand pil-grimageand zakdt are incumbenton every individual. Or,Shafi'l suggests, t may be that the meaningof incumbency(fard) in thiscase is differentrom hat in the case ofprayer.That is, the aim of the incumbencymay be a sufficientim(qasd al-kifdya)such that those who sufficientlyndertakejihdd achieve the executionof the incumbency nd the super-erogatorybenefits, nd they release those who neglect ihddfrom in (980-1). Scra 4, v. 95 was thenadduced to demon-strate that those who avoided jihdd (al-qd'idan as opposedto al-mujdhidan) were not sinners,but achieved a rewardeven if it was a lesserreward than thosewho exerted them-selves. Lingeringdoubts on the part of the interlocutorweredispelledby citationof9, 122:

(1) See Schacht, p. cit.,136 forhiscommentsn thispassage.



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58 NORMANCALDER(for t werebetter) f ofeverygroupa partydid not go outto fight o that theymightbecome earned n religious aw,so as to warnthe peoplewhentheyreturn, hat theymightbe aware.This shows,says Shafi'l,that naftirs incumbent n some notothers, and that tafaqquh-being learned in the law-isincumbent n some not others 988). Thus it is in everyduty(fard)where heaim is to achievea sufficiencyqasd al-kifdya)in whateverbefalls: .e. if a sufficiencyf Muslimsundertakethe business then the rest are freefrom in (990).This expositionof the natureof a fard.kifd'tpromoted hedevelopmentof that termin its technicalusage opposed toa fard.'aynt a termnotfound n Shifi't'swork). 1) Its imme-diate structuralpurpose,however,was to definethe natureof the second type of knowledge,whichwas thus a kind of'ilm al-kifdya,uch that if a sufficiencyf Muslimsattainedit the rest werefreefrom in in not striving o achieve t.It may be noted that the two types of knowledgewhichwerethusdistinguished erenotprovidedwith clearobjectivedemarcation:Shifi'l did not immediately ffer distributionof juristicknowledgeunder the heads he had suggested. Heimplied, t is true, hat demarcationmightbe based on analysisofsources:what s prescribedn the Book of God orin 'general'Traditions s partof al-'ilmal-'dmm. But it is not clear that'general'Traditions re easily identifieds such: it is analysisof incidenceof disputewhichreveals whether Traditionisor is not 'general'. Furtherthe words of the Book of Godthough dentified s 'general' are not always easy to under-stand:theinjunction o fight nbelievers or xample n Scira9requiredconsiderablenterpretationefore ts meaningbecameclear. Equally in need of interpretationtakingone examplefrommany in the Risdla) are the wordsof the Book of Godon wasigya 393-420). But interpretation,hafi'thas informedus, is a characteristicfspecialistknowledge. It wouldappearto be thecase that t s thegeneralnjunctionofight nbelieversthat is known 'dmmalan inda ahl al-isldm;the conditions(1) See ibid.,oc.cit.,n. 5.



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IKHTILAF AND IJMA IN SHAFI 'S RISALA 59and qualification ependon interpretationy the elite. It isthe possibility or general notion) of wasiyya that is clearfrom heBook ofGod; its conditions nd limits re partoftheknowledge f the elite. The major structural eatures f thelaw (prayer,fasting, ilgrimage,tc) are known to the genera-lity;the details are knownto the elite. Such at least wouldappear to be what is implied. If thereis nonetheless omedifficultyn demonstrating ithprecisionwhat ShAfi'lmeant,it mayofcourse be because theconceptualdistinction e intro-duced was a productmore of feelingthan analysis, and/orbecause itsexplanatory aluewas directed t a slightly ifferentproblem.The 'general'knowledge, ccording o ShAfi'l, oes not admitoferror,nterpretationr dispute;that ofthe elite does. Theknowledgeof the elite is based on Traditionswhichonlytheelite transmit nd is open to interpretationIa'wil) and qiyds.But the knowledgeof the elite is relevant to all: the 'dmma,it would thusappear,are dependent n thekhdssafor nforma-tionas to howto act orrefrain rom cting. Shafi'l'sdefinitionof knowledge n this respect implies a theoryof authority.Everyonehas an idea ofthe structure fthe law based on theBook ofGodand 'general'Traditions, utthere s an elitewhoseknowledges precise nd detailed ndwhoseduty t is to adviseand warn the ordinaryMuslims. The knowledgewhichtheelite possesses is subject to interpretation,iydsand dispute:variation mongst he ulamd' as to the detailsofthe aw is notto affect their authority. The effectof this definition fknowledge s to guaranteeclericalauthority n the one handand to legitimisedispute on the other. It may be thoughtthat these aims were morepertinent o Shafi'1'smanipulationof logic and concepts than objective descriptionof juristicknowledge.Having asserted a fundamentaltypology of knowledgeitmaybe shown hatShafi'idevoted he wholeofthesubsequentpartof the Risdla to analysisofthe secondtype, heknowledgeof the elite. The interlocutor emands to know the leastthat constitutes hujja in theway ofkhabaral-khdssareportsof the elite, also isolated reports,akhbdral-ddd), thereby



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60 NORMAN CALDERinitiating lengthydiscussionof the definitions,onditions,and reasonsfor heacceptanceof solatedTraditions998ff.).1)The problem fconflictinghabarwdhiidmergesnpara 1250,(where t is confusedwiththe problemof a singlekhabarper-mittingwopossiblemeanings 1251)). A rudimentarychemeof preferences broughtforward1251) but whether t wouldbe sufficiento ensurethat all fuqahd'would alwaysprefer hesame hadith, or the same interpretation f an ambiguoushadith)mightwell be doubted. The interlocutor,tillpuzzledbythenatureofkhabarwdhid s a juristicproof,s made to askabout themeaningofhu.ujja(proof). The problem,t becomesclear, ies in this thatthe term s appliedto 'general'Traditionsand to 'isolated' Traditions, houghtheyare clearlydifferent,not least because isolatedTraditionsmaygive rise to a multi-plicity f viewswhichhave to be resolved. It transpireshatthere re twotypesofhujja. On theonehand there s a clearscripturalext nass kildb ayyin) r a sunnaonwhich onsensushas been achieved (sunna mujtama'alayhd): these constituteproofsn which ll possibility fexcuse ('udhr) is cutoff; oubtas to either f thesetwo sources s notpermissiblend anybodywhorefuses o accept a proof fthiskind s required o repent(uslulib) (1256-9). But as to a sunnaderivedfrom n isolatedreport, sunna that is, concerningwhichthe report khabar)may vary, whetherbecause the report (khabar) permitsofinterpretationr because it is transmitted y a unique chainoftransmitter in such matters hehujja is different.Never-theless,it is, in Shfi'f's opinion,incumbenton scholars toacceptsuchreports, ecause theyconstitute textofrevelation(theyare manss.) even ifwhat is accepted n thismannerdoesnot constitutecertainty(ihdl.a) (1260). If, in matters ofthis kind,someonedoubts then he is not requiredto repent(lam naqul lahu tub) but:we say to him:you may not, ifyou are 'dlimdoubt in thismatter,ust as you maynot do other han udge on thebasisof thewitness f ustwitnesses,hough hatwitness s subject,to error:you judge on that basis because of the appearance

(1) Onwhich,ee bid.,50ff.



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IKHTILAF AND IJMA IN SHAFIi 'S RISALA 61(al-zadhir) f truthfulness n theirpart; God is responsibleforwhat you do not knowabout them 1261).The two types of h.ujja obviously correspond o the twotypes of knowledge. The first ype of hujja is fundamentaland servesto define he basic structure f the law, such thatany rejectionof this hujja or of the knowledgearisingfromit necessitates repentance. The other type of h.ujja, thatbased on a khabar wdh.id,is susceptible to interpretation,variable and does not produce certainty. It is incumbenton a learnedman to accept the evidence of a khabarwdhid

in spiteofthe factthat it does not producecertainty. It mayseem then that variant opinionsare inevitable though theymay be minimised y systematic nalysisof isndds, tc.) andare built into the system. By arguingforthe acceptanceofthe khabarwdhiids a hujja Shifi'iwas providingustificationfor the incidence of ikhtildf.Shifi'i'sconceptofknowledge, wouldsuggest,was intendedto embodya distinction etween structural eatures nd peri-pheral or subsidiaryfeatures,of defining eaturesand non-defining eatures. The usefulnessof such an analysis in anera of juristicsectarianism was that it afforded principalofunitywhichtranscended,whileacknowledging,heincidenceof dispute. Abrasive contact between local schools wasneutralisedby recognition hat fundamentallyhey were allthe same (ahl al-isldm)and that such differencess did existdid not affect he bases. The bases wereprecisely, s it wereby definition,hat which the local schools had in common.The unitywhichShafi'iaspiredto assertwas not an exclusivebut an inclusive and tolerantone whose ultimategroundwasthe commonnterest nd the egitimate uthority f theclericalclass.The distinctionbetween two types of knowledgeand itsrelationto ikhtilifwas impressedupon the interlocutor/readerby repetition. It emerged again in Shafi'l's discussion ofqiyds 1321-76). Qiydsand ijlihdd,he asserts,are two wordswith one meaning (1324). (They represent, n effect, heintellectualprocess wherebya finitebody of revealed textsmay be rendered elevant to the infiniteomplexity fhumanevents.)



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62 NORMANCALDEREveryeventthatbefalls Muslimhas itsnecessary eligiousvalue (hukmIdzim), and thereis evidence as to the truepath in that matter. It is incumbenton the Muslim ifthere s a specific ulingon a matterto follow t. If thereis no specific uling henevidenceas to the truepath mustbe soughtby ijlihdd. And ijtihdd s qiyds 1326).The interlocutor etrayshis habitual puzzlementat Shifi'i'sstatement nd raisesa whole seriesofhighly hargedquestionswhichprepare hewayfor comprehensiveurvey f thenature

ofspecialistknowledge nd thequalificationsf the specialists.Do you consider that '~lims when they excercise qiydsachieve certainty(ih.dla) thay theyhave understoodGod'struth? Is it permissible or hemto vary nmatters ubjectto qiyds? Are they obliged (laklif) in every matter tofollowone (true) path or are there several differenttrue)paths? What proof s therethat they can exerciseqiydson the basis of surface ppearance whentheyare ignorantof) fundamentalrealities (al-yzdhiruin al-bdfin),or thatthey may vary in theiropinions (yatafarraqd)? Is theirobligation taklif)withrespectto themselves ifferentromthat with respect to others? Who may exercise ijtihddand qiydaswithrespectto himselfbut not others, nd whowithrespectto himself nd others? 1327).The answer to all this depends-we are no longer surprisedto discover--onunderstanding hat knowledge s essentiallyof two kinds: expressedhere as, on the one hand, certainty,based on comprehendingoth surfaceappearance and under-lyingreality (ih.d.a fi l-zdhirw'al-bdfin) nd, on the other,truthbased on appearance only (haqq ftl-zdhir) 1328).The first ype of knowledge, hat which constitutes hdtacertainty,s based on either revealed textofGod's command(nass hukmi-ldh)oron a sunna transmittedromhegeneralityto thegenerality. It is not permissibleo be ignorant fthis

knowledgeor to have doubts about it (1329). The othertype s ofcourse ilmal-khdssa,hat s a sunnabased on khabaral-khdassa, sunna knownonlyto the 'ulama', such that theyalone are obliged (taklif) to know it, a sunna found only



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IKHTILAF AND IJMA IN SHAFIi 'S RISALA 63amongstthemor some of them,based on the truthfulnessfthe individualswho transmitsomethingfromthe prophet.It is incumbent n theahl al-'ilmthattheyhave recourse o it.It constitutesa truth based on external appearance only,withoutunderstanding f inner realities. It is like killingon the basis of two witnesses: that too is haqq ft l-.zdhirforit s alwayspossiblefor wowitnesses oerr) 1330). Knowledgebased on ijmd' s also of hiskind 1331); 1) as isknowledge asedon ijtlihdd y qiyds. This (ijtihddby qiyds) is a search fortruth (al-haqq), but it is truth based on what is apparent(.dhir) to the qd'is irrespective f what is apparent to thegenerality f the 'ulamd'. God alone knowswhat cannot beseen (1332).(If knowledge s soughton the basis of qiydtsnd ifqiyds srightly xercised hemuqd'isanwillbe agreedon mostmattersbut we may findthem at variance (on others). There arein fact two types of qiyds,one based on essentialprinciples(fi ma'nd l-asl) and one based on mattersof similarity: nlythe secondtype permits f variation. The first ype s exclu-sively arguments a maiore ad minorem,or a minore admaiorem.) 2)The interlocutornaturallyrequires some clarification ndseems particularlyperturbedby the phenomenonof variantviews being equally permissible. The well-establishedwell-established, hat is, by Shifi'I in the Risdla) responseto thisrelated to the factthat,forpeoplewho are out ofsightof theKa'ba at prayer-time,ll that is requiredfrom hem is thattheymake the effort ased on whatever ndicators re availableorknownto themto pray n therightdirection. But anotherresponse s found n thisthat permission o marry, o inherit,to act as witness is granted on the appearance of justice,though a man may inwardly (ft l-badfin) e unjust. Twomen with different nowledge may be constrained to actdifferently ith respect to the same individual: "the dutyincumbenton us with respectto one man is foundto differ

(1) See further n ijmd', below.(2) For furtherdiscussion of Shdfl'"Isviews on qiyds/ijtihddee ibid., 120ff.



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64 NORMANCALDER(mukhlalif)depending n the degreeof ourknowledge nd theknowledge f others" 1350-6). In like manner,withrespectto a matteron whichthere s no bindingtextualrule,Shifi'iassertsthat a learnedMuslimmust seek the truthby ijlihddand he is obliged (laklif) to followthe truth as it appears)to him (1358). The interlocutor ontinuesto expressdoubtabout this "judging a singlematter n various ways" (1359)but is reduced temporarily o silence by a further xampleof courtprocedure,yet anothercitationof the qibla situation,and a number fQuranicquotationswhich ssert he imitationsofman'sknowledge 1361-76). The main aimoftheargumentis to establishqiydsas a valid source of (juristic) knowledgebut not an infalliblesource: it permits, ndeed precipitatesikhtildf.It is by now clear from he structure f Shffifl'srgumentthat his real concern s to account for and justify he pheno-menon of ikhtildf. An extendeddiscussionof ijlihdd permitshimto make explicitthis concern.

The interlocutor emands reassuranceabout the permissi-bilityof ijlihddand promptsShifi'i to adduce yet again thecase offacing he qibla duringprayerwhen out ofsightof theactual Ka'ba. Each individual can only act on the basisof suchsigns dald'il) as he is familiarwith, o that twoindivi-dualsfamiliarwithdifferentignsmayface ndifferentirections(1381). The interlocutorperceives as it were where theargument s going and is made to bringforward bjectionsas follows:Interlocutor: f I grant you this I grant that in certaincircumstances here is ikhlildf.Shafi'i: State your opinionon this matter.Int: I say this s notpermissiblei.e. I do not grant khlildf).Sh: Imagine t is you and I, and we are bothknowledgeableas to the means(of findinghe Ka'ba). I say: this is

theqibla;and you say something ifferent. Whichoneof us must followhis companion?Int: Neither.Sh: What must be done?



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IKHTILAF AND IJMA IN SHAFIi IS RISALA 65Int: If I say it is not incumbent n themto prayuntiltheyattain certainknowledge (ihdafa), that is impossible)fortheycan neverknow forcertainwhat theycannotsee. Then, they must eitherneglect prayer,or theduty of facingthe qibla is removed. But I cannotmaintaineither ftheseviews. I see no alternative oasserting hat each one mayprayin whateverdirectionhe considers right, and that they are not charged(laklif) with anything lse. Alternatively, may saythey are chargedwith finding he rightanswerbasedon both appearance and innerreality (al-zdhirwa'l-bdftin) ut any erroras to the realityas opposed toappearance is discounted (wu i'a 'an-humd).Sh: Whateveryou say, it is proof gainstyou; foryou havedistinguished etweenh.ukmal-bdfinwa'l-zdhir,whichwas what you (triedto) deny 1382-9).Thisdialogue s nicelyorganised o serve tsparticular ramaticpurpose:the interlocutors brought o admitthat theremustbe in certain circumstanceskhtildfnd theremay be no wayofreconcilingwoviewswhich, houghdifferent,an be neitherharmonisednor disproved.The dialogueproceedswiththe nterlocutornclined o assumein a case ofikhlildfhat one or bothpositionsmustbe in error(khaf.a'), ut the errorsmawd.el',setaside,discounted1389-93).Shafi'lclearlydislikesthe use of the termkha.ta' nd proceedsto demonstrate hat ikhtildfs quite inevitable n certaincir-cumstances. His first xample s based on theuse ofthetermmithl in Qur'an, 5, 95 (1394-1401). The second exampleis based on the choice of a 'just' man ('adl) to act as wit-ness,etc.: sucha choice anonlybebased onexternal ppearance.Sins and goodactionsare alwaysbothpresentn an individual'slife o there s no escapefrom henecessity f jlihdd s to whichpredominates; this beingthe case, it is quite inevitablethatmujiahidswill be at variance in theiropinions" (1402-1405)(4." xj AS TlIII Or,forexample,two judges may judge one affair, ne by accepting,one by rejecting; his s ikhlildf,ut each one has acted as was

5



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66 NORMANALDERincumbent ponhim 1406-7). Furthermore,here s a h.adithonfirminghe validityof ijlihdd 1409) 1):

The interlocutorbjects to thison the grounds f its beinganisolated Tradition,an objection quickly dismissed;he thenpointsto the prophetic se ofthe termkhafa'.Int: In the Traditionyou have giventhe prophetmentionserror and right (khafa',sawdb).Sh: That is proof gainstyou.Int: How?Sh: The prophet aid that one of themwas rewardedmorethan the other. But therecan be no reward orwhatis notpermissible, orcan therebe a reward or n error(even if it is) discounted.The point Shifi'1desires to make is that 'error'cannotmerit'reward'. He expresses himselfrather clumsily:If a personwere told to exercise jlihdd,granting he possi-bilityof error, nd then did so, as he was commanded,onthe basis ofexternal ppearance, hen nyerror e committedwould be set aside-as you (the interlocutor)have said.But ifthat werethe case thenpunishment,or n error,wouldbe more appropriate than reward);the best that could beexpected (foran error) s that a man mightbe pardonedhis error;and it is inconceivablethat he could obtain areward, oran error1420).Shifi't's intention s clear: all decisions based on ijtihddareequally valid, and thereshouldbe, as far as possible,no talkof errors';foneis rewarded or n actionthat actioncannotbe'wrong' (khat.a'). The interlocutors not unnaturallystillpuzzled: what, he asks, is then the meaningof sawdb andkha.la'? 1422):

(1) As a wayof ranscendingispute imilar eviceswerenotunknownn otherareas,cf.Wansbrough,tudies, 11.



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IKHTILAF AND IJMAi N SHAFI'i 'S RISALA 67One is charged (laklif) with ijlihddonly on matterswhichare not evident. So, ifone does that (i.e. exercises jlihdd)one has done right asdba) in so far as one has respondedto an obligation (takltf). Hence that (action based onijlihdd?) is 'right' (sawdb) on the basis of appearance(al-zdhir). God alone knows the bdltin. If two peoplediffern facing heqibla,though heyare both right' asdbd)by ijtihdd, et,whiletheydiffern aimingfor hesamepoint,they cannot both be 'right'withrespectto the point,butthey are 'right'with respectto ijlihdd 1425-6).One may be pardonedforthinking hifi'l is hereover-subtle;but it is clear what he is strugglingo express:he wishes toeliminate rom he incidence f ikhlildfll sense of error r sin.A variety of views is permissibleand acceptable. Para-doxically ll are 'right'.Succeedinggenerations oinedthe apophthegmaticallyatis-fying kullumujtahidmuSib"; decisive loganwhichobviouslyhad not emergedwhile Shcfi'lwas writing, ut whichclearlyderivesfromhis thinking. Likewise later generationsdisco-vered what Shafi'i lacked, a relevant Tradition: "ikhlildf sa blessing",again obviouslyin part a result and productofclericalexplorationof this theme. 1)It has alreadybeennoted, hat the functionfthe nterlocutorin the Risdla is to provide Shafi'l with the opportunity oreiteratewithslightvariationthe same points. In particular,instancesofapparentobtuseness n thepartof theinterlocutorlead Shifi'l constantlyback to the distinctionbetween twotypesof knowledge nd to the incidenceof ikhtildf. Indeedthe quality of conviction onveyedby the argumentdependsperhapsmore on repetition han on logical consistency."I find hepeopleofknowledge oth n thepast and recentlyare at variance n certainmatters. Is thispermitted?"1671).So the interlocutorntroduces n argument pecifically elatedto ikhlildf. The questionelicitsthe by now familiar nswer:(1) See further chacht, op. cit.,95-7, esp. 96, n. 2; also, Goldziher,The Zahiris,tr. W. Behn, Leiden, 1971, 89ff. Shffl't'sargumentabout the absence of khafa'in the exercise of ijtihddbecame a standard theme,taken up e.g. by Mulhammad'Abduh, see G. Hourani, 'The basis of the authorityofconsensus', SI, 1964, p. 42.



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68 NORMAN CALDERikhtildf,hifi'I explains,has two aspects. From one pointof view ikhtildfs forbiddenbut "I cannot say that aboutthe other" (1672). Ikhlildf s forbiddenn all sphereswhereGod has provided hujja in his Book, or on the tongueofhisprophet, extually nd explicity mansds,bayyin). But withregardto such texts as permitof interpretationla'wil) orare to be understoodby qiydsin such a way that the inter-preteror qd'is accepts what is implied by a khabaror qiydseven if anotherdiffers romhimin his interpretation:n sucha case, "I do not say that variation s forbidden, s it is intextuallyexplicitcases." (1675) The interlocutor ontinuesto doubt;he demandsfurtherroof s to the existence fthesetwotypesof khiildf,he oneforbidden,he othernotforbidden.Shifi'l quotes the Qur'an:98,4 Those who have been giventhe Book were not dividedexcept aftertheywere vouchsafed a clear proof.3,105 Be not likethosewhowere divided andwereat varianceafterthey were grantedclear proofs.The relevance f this s, Shifi'lexplains, hatGodhas criticisedikhtildfn mattersconcerningwhichthere re clear proofs...(1679). Shafi'l goes on to give examples of establishedikhtildf,nd to give his own suggestionsfor a possible (butnot definitive?)resolutionof various questions (1681-1804).The introduction f a distinctionbetween 'ilm 'dmma and'ilm khdassamay be seen as directedentirely t this end, toexplain and justify khlildf. The argument s, perhaps nevi-tability, otfree rom ircularity. In spiteofShafi''s attemptsto distinguishhetwoknowledges yreference o their ources,in practice, t seems to me they can only be separated byreferenceo the existenceof ikhiildf;he distinction nce esta-blished s used to explainikhlildf.SchematicallyShifi'l's positionmay be summedup thus.The Book of God and 'general'Traditionsgive rise to a typeofknowledge, lso 'general',which s knownto all the commu-nity. This general knowledge representsthe fundamentalunchangingverities of the Islamic juristic system. Aroundthis fundamental tructure here s a morenebulousstructureof laws and rules,details and particulars, ermittingariation,



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IKHTILAF AND IJMA IN SHAFI1i 'S RISALA 69even, by new interpretation,hange. This is the specialistknowledge, he monopolyof the learnedclasses, derivedfromisolated/specialistTraditions, qiyds/ijtihdd nd ijmdc. Inspite of the fact that the general knowledge s presentedassomehow primaryor dominant,the truth is that in everyinstance specialist knowledgeaffects nd conditionsgeneralknowledge. I have pointed to two examples above-jihddand wasiyya-where thoughthe legal source is 'general' theprecise significanceftheseterms n a juristic ontextdependson qualificationnd interpretationy thelearnedclass. Suchexamples could be multipliedvery easily. The knowledgeof the specialistsqualifies,conditions nd judges the generalknowledge of the masses. The nature of this knowledgeand its specific usceptibilityo ikhtildfs explainedby Shifi'lin a lengthy,coherentand well-organised rgument,withinwhichrepetitions meaningfulnd varied,nevermerely tiose,stretching rompara. 961 (Bab al-'ilm) to the end of theRisdla. Final demonstrationfthecoherence f his argumentdepends upon the provisionof a context forhis work,andanalysisofhis notion of ijmd'.

Shafi'l's analysis and exposition of Islamic epistemologywas in one sense monolithicand totalitarian. All humanevents could and must findtheir resolution n God's law. (1)Both psychologically nd sociologically his was an ennoble-mentof the human condition:nothingn human ifeor societywas so mean or so insignificanthat it was unworthy fGod'sinterest and command. This interest and command weremediated to man through prophet,who leftto his (in timeuniversal) community he tangible evidence of his mission,the exegetical ourcefor heknowledge fGod's will,scriptureand Tradition, both aspects of divine revelation.2) Thefirstpart of the Risdla is concernedwith the identification

(1) See note2, p. 55.(2) Thedevelopmentfthese deas n Islam snowhere etternalysed han nWansbrough,tudies, haps. 1 & 2.



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70 NORMANALDERofQur'an and hadith s aspectsof revelation nd valid sourcesfor the discoveryof God's law. (1) But perhaps the majorintellectualeffortn the firstpart of the Risdla was directedtowards the identification f two 'objective' sciences whichcould be applied to the textsofrevelation n orderto discover'scientifically' hat theymeant: linguistics nd history. Theformerprovidedthe exegetical principleof 'dmm and khdss(179 ff.),the latter that of al-ndsikhwa'l-mansakh106 ff.).The secondpart ofthe Risdla,which have analysedin somedetail in thisessay,is devotedentirely o theproblems f ilm,ikhtildfnd associated problemsdeemed to arise out of thenature of the revealed texts, or out of meditation on theirmeaning. Two furtherobjective' sciencesare in thiscontextintroducedwhichmay be brought o bear on revealed texts;biography, s a check on isndds (ad the khabarwdh.id)andlogic (qiyds) as a meansofextending hescopeof a giventext.The wholework s dedicatedto the service of a seriesofideaswhich represent the monolithic,totalitarian all-embracingnatureof the Islamic juristic mpulse. All eventshave theirresolution n God's law; all knowledge s therefore nowledgeof God's law, hence ilm s defined s relating nly o knowledgeof the aw; 2)) all sources ofknowledge rerevealed ources; 3)all authoritys clericalauthority,risingfrom lericalcustodyand learnedinterpretationf the revealed sources.Quite remarkable n this context is the completeabsenceof any reference o the intellect as itself, ndependently fGod's revelation, source of knowledge n the moral/juristicsphere. Thecharacteristic u'tazilldistinctionetween ontin-gent (revealed) and non-contingentrational) law may wellhave foundexpressionby the time of Shafit's writing. Ifthat is the case, the very absence of referencen the Risdlamay itselfbe a polemicalcomment, refutation f thosewhoasserteda role forreason in this sphere.4)

(1) See furtherJ. Burton, The Collection ftheQur'an, Cambridge, 1977, 21-29;also Wansbrough, Studies, 43-52, 77-8, 148-202; and Milieu, 71-87.(2) Or, 'of the Book', cf. Risdla, paras. 43-5.(3) For ijmd', see below.(4) See on the Mu'tazill position, Schacht, op. cit.,40 and 258-9; Wansbrough,



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IKHTILAF AND IJMA IN SHAFI i 'S RISALA 71Sh fi'I's discussion of ikhlildf,based on his distinctionbetween two types of knowledge, n no wise mitigatedthe

totalitarian spect of Islamic jurisprudence: uite the reverse,for n the courseofthat discussionhe repeatedand reaffirmedthe dogmathat all humaneventualitiesweresubject to God'slaw, and hisdistinction etween wotypesofknowledge ervedonly to confirm hat all knowledgewas based on revelation.Nevertheless, is defence nd justificationfikhlildfstablisheda kind of flexibilitynd tolerance already perhaps implicitin some earlier uristicliterature) n so far as the notion ofvariationwas now built nto the system nd itsnegative mpli-cations neutralised.1) The subtlety f ntellectual ndeavour,the constantrepetition, he consistency f effort,which areall demonstrablebehind the scholastic drynessof the text,reflect considerable oncernto give forceto his contention:ikhtildfs permissible nd to be expected. The motivesforthe concernthoughno doubt multivalent, re not obscure.He was clearlyresponding o a contemporary eed to forgeforthegeographicallynd ideologically ariousancientschoolsa principle ftranscendentnitywhereby heycouldrecognisein themselves unified nd catholicbody. At the same timehe enabled the contemporarycholarsto associate themselveswithtraditions, r traditional igures fthe Islamicpast, goingback to and including ll ofthe ashdb, rrespectivefrecordeddeviation or divergence n juristic conclusions. This desirefor an inclusive catholicitymanifests tself throughoutthesecond part of the Risdla. The issue on which therewasno compromise nd whichrepresents s it were the commondenominator ubscribed o by all the ancient chools, hefocusof their oyalty,was that of clericalauthority. The articula-tion of a typology f ilm was also a defence nd justificationof a gulfbetweenthose who know the specialists)and thosewho depended on those who know (the 'generality'). Thus,abdicationofcertaintyikhlildf)wenthandinhandwith asser-tion ofprerogative.Milieu, 110-13; or laterperiod,G. Hourani, slamicRationalism, xford, 971,chap. 6.(1) A point already noted by Wansbrough, Milieu, 91.



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72 NORMANCALDERThe juristic closing of ranks, evident in the Risdla, was,I have surmised, responseto the Mu'tazil1challenge. Theepistemological ocusof that challenge ay in the denial ofthejurists' monopoly of knowledge/authority:epistemology nIslam was always a discussion of authority). Revelation,for heMu'tazills,was not thesole sourceortypeofknowledge;reason was a parallel and independent ource. Divine lawas such had a strictly im;ted sphere of validity. It waspartly t leastbecausetheythusdefined sphere fknowledge/authorityfree fromthe influenceof the fuqahd' that theMu'tazilisfoundfrequentfavour at the court of the caliphs.Though not explicitlyenunciated,the Risdla functions s arefutationof Mu'tazill epistemology:revelation, it asserts,is a necessary, n exclusive nd a sufficientourceofknowledgefor all human purposes-and its interpretations the prero-gativeof the fuqahd'.

Acknowledgementnd justification f ikhtildf ad a stillwider ignificance:n Shafi'l'swritingt emerged s a functionaljuristic concept which guaranteed the practical infallibility('isma) of the community. This characteristic 'isma) onan ideological or metaphysical evel was usually associatedwith ijmd', 1) but that concept (ijma') in a juristiccontextwas of limited,that is strictly ualified,value. There wasa grandmetaphysicalvalue in the assertionthat the Islamiccommunity ould not unite on an errorand a more prosaicusefulness,n view of the evidence ofrecordeddispute, n theassertion that the community emained nfallibleeven whenit did not achieve ijmd', even when it held and promulgateddivergent uristic views. Divergentviews emergingwithinthecommunityould all be considered,withappropriate uali-fications, o be right. It was this continuedrightnessofvariantviewsthatguaranteed he nfallibilityfthecommunity.Ijmd' in fact as a juristic concept representsprinciples(1) See Wansbrough,Milieu, 86 and opera cit. there;the term metaphysical' isof course W's.



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IKHTILAF AND IJMA IN SHAFI'i 'S RISALA 73of rigidity and immutabilitydangerouslyopposed to theflexibilitynd tolerancewhich, have suggested, hafi'f riedto build into the systemby his analysisof 'ilm and ikhtildf.Schacht has demonstratedShVfi''s considerabledistate forthe conceptof ijmd' as used by the ancientschools-that is,pre-eminentlynd perhaps exclusivelyas a term indicatingthe consensusdoctorumijmd' al-'ulamd')-(though he conti-nued to resortto that idea on a casual and ad hoc basis). 1)This distastemay be relatedto a numberoffactors, otleastthat, since the 'ulamd' cited were invariably local 'ulamd'and ijmdaal-'ulamd' emerged n polemicalcontextsas a localijmdc, t was a concept which tended to foster entrenchedpositionsand irreconcilable ppositionbetweenlocal schools.Regional variation if justifiedby appeal to ijmd' would tendto be divisive,each regionpresentingtself s a self-containedcommunity, enyingthe validityof alternativeviews or thesoteriologicaltatusof other ommunities. Shifi'lbyaccount-ing forregionaland othervariation as a result a permissibleand inevitable esult)of nterpretationfrevealedtextsdefusedtension and diminished conflict. Ijmd' al-'ulamd' was aconcept which he consideredso absurd (or dangerous) thathe was temptedto deny ts existence cf. 1556-9)as well as itsvalidity.In the Risdla Shafi't'smajor discussionof ijmd8 s situatedin the middleofhis extended discussionofthe elementswhichmake up 'ilm al-khdssaafter the discussionof khabarwdhidand before hediscussion fqiyds/ijtihdd. I have alreadytriedto demonstrate hat that arguments generallyboth coherentand purposeful:the distinction between the two types ofknowledge s elaborated and applied withvaried referenceokhabarwdh.id,qiyds, jtihdd nd ikhtildfall thesebeingnotionsrelated to 'ilm al-khdssa)and with cumulative mpact. Thestructure f the argument s meticulousand the situation ofijmdcwithin hat argumentmakes it clear that we are to takeijmd8 s an element n 'ilm al-khdssa.The ijmdbdiscussed n the Risdla (1309-20) is consensuson

(1) See Schacht, op. cit., 88-95.



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74 NORMANCALDERa matternot referred o in any revealed text (to be distin-guished thereforefrom a sunna mujiama' 'alayhd--alreadyestablished s partoftheknowledge fthegenerality.1) Theinterlocutorsks:

What is yourproof hatyoumayfollow he consensus fthepeople (md lama' al-nds alayhi) in a matteron whichthereis no text fGod'scommand nd which hey o not relate romthe prophet? Do you claim what others claim, namelythat the ijmd' does not existexcepton the basis of a validsunna even iftheydo not actuallyrelate t?Shifi'l explains that if the people have achieved consensuson a particularmatterand they specify hat it is based ona hikdya romheprophet,henwhatthey aymustbe accepted(1310).As to what theydo not specify n thismanner i.e. do notspecifyas a transmission,.ikdya, fromthe prophet)thenthe case may be either hat what they say is a transmission(hikdya) from he prophet2) or the case may be otherwise.In fact,however, t is not permissible o consider a matterbased on ijmd')to imply transmission(hikdya) if hepeopledo not actually specify hat) because it is not permissibleto relate omethingxceptonthebasisofwhatone hasheard,nor is it permissible o relate somethingmerely magined(1311).Now, this approach to the conceptof ijmd' relates clearly

to two questions. First,when a problemarises, concerningwhichthereare no revealedtexts ofanykind, s it permissibleto turn to the people? And, second, does the existenceofan ijmd' amongst the people-an ijmd' devoid of revealedsupport-imply the existenceof a propheticTradition whichhas somehowgot lost? Both these questionshad previouslyemerged n the Jewish uristictraditionwith respectto theconceptminhag. The questionof what to do in cases where(1) See above, esp. ad Risdla, 1259 and (below) 1815.(2) The text sgarbled: read either i l A4 .)i or ot D:see editor's footnote.



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IKHTILAF AND IJMA N SHAFI'i 'S RISALA 75texts of revelationprovidedno guidancewas answered n theTalmud, as it was answeredby Shafi't, n termsof turning othe people. ("Go out and see what the action of the peopleis and act likewise", TJ, Pe'ah, 7:5, 20c.) It would appearto be the case thatonewayofexplaining hevalidity f custom(minhag) as a sourceof law was on the groundsthat a pre-viouslyextanttransmitted raditionhad in the courseoftimebecomeforgotten. Bothaspectsofthedebatemaybe detectedin a well-known arrative oncerningHillel the Elder. Whenasked what the law was in a particularcase, he said: Leaveit to Israel; f hey re notprophets,hey re thesonsofprophets.This represents he assertion and justification f minhagasa valid source of law. When he had seen how the peopleacted, Hillel thereuponrecalled' the halakhah nd said: Thushave I received the tradition fromShemai'ah and Avtalyon(TB, Pesahim, 66a). This may be taken to representtheassertion hat a customof thiskind s due to a 'lost' tradition.ShAfil'Tsiscussion of the concept ijmd' echoes this Rabbinicdebate. For him it was a questionof whether jmd' (of thetype specifically efinedby him in this context) impliedtheexistenceof a transmissionhikdya) which had subsequentlyvanished fromthe community. He informs s that he hadpreviously eld thatview buthad nowchangedhismindbecauseofhis intellectual onviction hat Traditionsfrom he prophetcould not altogethervanish from the community 1312).Ijmd' was a valid source mplying othing bout the existenceof a 'lost' transmission. (To have said otherwisewould havebeen to impair hehierarchicalanking frevelation: ommunityijmd' if t implieda revealed textwouldbe on a parwithreve-lation.) The validityof ijmd' derivedfrom he factthat the'dmmacould not unite on something pposed to the prophetof God (1312). (1)

(1) For the Jewishconcept minhagsee, EncyclopediaJudaica, 1971, ad minhag.Theprocesswhereby abbinic nd otherJudaeo-Christiandeas became vailableto Muslim cholarshas beenextensivelyiscussed hroughout ansbrough'swobooks, cit.,note 1. ShAfl't'sonvictionhatno Tradition oulddisappear romthecommunitys relatedto his notionoflanguage,Risdla, 133ff.,sp. 138-40.His notion f jmd'was later ubsumed nder he uristic oncept f dda.



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76 NORMAN CALDEREvidence forthat conclusion, evealedproof hat is forthevalidityof ijmd8 s an independent ourceof law, was foundin two Traditionsreferringo luzdiml-jamd'a,cleavingto thecommunity. (The 'My communityhall not uniteon an error'Traditionobviously emerged ater than and partlyas a resultof Sh~fi'l'swork.) The conceptofcleavingto the community,liketheconceptof jmd' ndependent frevelation,mmediatelyprovoked clarificatory emarkswhich might be interpretedagain as reflecting dispute. Shifi'i was quick to pointoutthat by luzrm al-jamd'a he understood a juristic concept("fortahliland tahrim")not a physicalmovementfromplaceto place in order to join a particularphysicallydefinedbodyofpeople (jamd'a) (1319). It maythusbe legitimate o inferthattheconcept. fluzrmal-jamd'ahad earlierbeen associatedwith a context not quite so centrally uristic. One mightrefer t thispointto that literary) rouportendency-isolatedby Wansbrough-whose dominantnotion of soteriologywasmembershipof the community.1) In practice howeverIslamic deology, ormulateds a result f ectarian/onfessionaldebate, probably associated the notion of cleaving to thecommunitywith sectarianmovements, pecificallyKhariji. 2)Shafi'l's insistencethat he did not mean cleaving physicallyto a group may represent n attemptto dissociate himselffromthe conventionalvision of Khariji sectarianism. Onemight n sum see Shafi'I'snotionof ijmd' as the integrationof a specific uristic concept (?Judaic) with a metaphysicalconcept (the soteriologicalcommunity)which had alreadyemerged n an Islamic context.It may be instructivehere to repeat that there are twodistinctions o be borne n mindwhilereadingShifi'Ion ijmd'.Firstthere s the distinction, otedby Schacht,between jmd'al-'ulamd' and ijmd' al-dmma;then there is the distinction(1) Wansbrough s inclined to see membershipof the community s the earliestexpressionof Islamic soteriology,ntercepted ater by the idea ofsubmissionto thelaw as the dominant mode of salvation. ShAfl'1'sranking of luzz(mal-jamd'abelow revelation as source of law, may be thoughtto symbolisethis change; seeMilieu, 87-91, and chap. IV.(2) Cf. Wansbrough's comments, ibid., p. 119-20.



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IKHTILAF AND IJMA IN SHAFI'i 1S RISA^LA 77between jmd' on a matterdealt with n a Traditionor in theBook ofGod and ijmd'on something ot dealt with n revela-tion,bothofthesebeing jmd' al-'dmma. Now, jmd' al-'dmma,if it is based on an elementof revelation, s not onlypart of'ilm al-'dmmabut is the definingeature fthattypeofknow-ledge: it is the absence of disputeor presenceof ijmd'whichpermits he definition f an item as 'dmmnot khds. Ijmd'al-'dmmahowever,when it is on a matternot providedwitha textual base, is clearly to be understood as part of 'ilmal-khdssa. This may be inferred rom he context of Shifi't'sdiscussionof ijmd',but, lest therebe doubts, t may be worthreferringgain to paras. 1328-32. Shifi'l theredefinedwhatconstitutedcertainty ihdla) (1329) and what did not, viz.,akhbaral-khdssa1330), ijmd' 1331) and ijlihddbi-qiyds1332).Thoughthe referenceo ijmd' is laconic, t maynot be simplydismissed: jmd' (as a separatesource,distinct rom evelation)is part of 'ilm al-khdssa. A final confirmationnd perhapsexplanation f thismaybe derivedfrom he ast fewparagraphsof the Risdla. The discussionof 'ilm and ikhlildf nalysedin this essay gave place to a lengthyseries of examples ofikhtildf1681-1804). To this was added a briefappendageon whether qdwtl l-ashdbmightfunction s sourcesof know-ledge (1805-11). Then,another ppendagewas added, consti-tuting a final resume of the argumentabout two types ofknowledge. The interlocutorwas yet again puzzled:

So, you make juristicdecisions (hakamia) on the basis ofkildb and sunna; but on what basis do you make decisionsby ijmd', and then make decisionsby qiyds? Do you setthese twoup on a parwithkitdb nd sunna?With these wordsShifi'tprovidedhimselfwithanother peningfor his unwearying eiteration f the same argument. Thebasis of the decision s differentn each case.Decisionsmay be based on scripture kildb) or Tradition-on-which-there-is-consensusal-sunna al-mujlama' alayhd);on such matters here s no ikhlildfndwe may say: we havejudged the truthwithrespectto both externalappearanceand innerreality (hakamndbi'l-haqqft -zdhir wa'l-bdtin).



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78 NORMANCALDERAlternatively, ecisionsmay be based on a sunna relatedby isolated paths, a sunna upon whichthe people (al-nds)have not reached consensus. Concerningthis we say:we have judged the truth n the basis ofexternal ppearanceonly ( akamndbi'l-haqqfi l-zdhir),errorbeingpossible onthepartofthetransmitters. Furthermore,ecisionsmaybebased on ijmd', and qiyds,which are (as sources) weakerthantheothers, houghnecessary; or iyds s notpermissiblewhena report khabar) is available... (Justas purificationusingsand is onlypermissiblewhenwater is notavailable).So, what comes aftera sunna (in the hierarchy f sources)constitutes hujja only fa sunna is lacking 1815-18).The completehierarchy f sources would thusappearto be:- kitdb and sunna-on-which-there-is-ijmc- sunna on which there is no ijmdc (isolated or specialistTraditions),- ijmd' and qiyds.Onlythe first rouptherecorrespondso theknowledge fthe

generality; he othersourcesconstitute he knowledgeof thespecialists. The sunna-on-which-there-is-ijmd'elates to aconsensus achieved as the result of and specifically elatedto a propheticTradition. Consensus, o ipso, s a lowerproofand constitutes hujja only fthere s norevealed extavailable.This consensus, n a matternot dealt with n a revealedtext,is, we know (1309-20) a consensus of the 'dmma. 1) Whythen is it defined, s it clearlyhereis defined, s part of theknowledgeof the khdssa? An explanation is not difficultto find. Consensus,whenit is not based on a revealedtext,is a weaker ourcethan a revealedtext;butcustodyofrevealedtexts, n particular fspecialistor isolatedTraditions,ieswiththe 'ulamd'. Hence it is the 'ulamd', and only the 'ulamd'who are in a positionto accept or denyor otherwise ualifya consensusof the people, a consenus,that is, not relatedto a revealedtext. A consensusof the generalitymustgiveway beforea text. The point is of course that Shifi'l wasconcerned o assert revelationas the primary ource of law.Generallyspeaking in the event of conflictbetweencustom

(1) Pace, the editorof theRisdla, p. 599, note 10.



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IKHTILAF AND IJMA IN SHAFI'i 'S RISAkLA 79(ijmd') and revelationhe desired hat revelation houldprevail;revelation houldprevail n fact venwhere t couldnotdecisive-ly remove doubts or ikhlildf. He permittedhowever, asa residual source, appeal to the practice of the community,if it could be shown to be a universalpractice, n areas whererevelationprovidedno guidance. Custom/consensus as notto prevail over revelation;where an element of revelationcould be renderedrelevantby a scholarthen revelation ookprecedenceover ijmd'. Knowledgeof the area where custommight prevail could only belong to the scholar who knewthe limits and the finerdetails of revelation. The area ofvalid ijmd', that is the area not covered by revelation,wasknownonlyto scholars nd was thereforeartof ilmal-khdssa.ShifiT1's ealingwith ijmd' is fullyconsistentwithhis generalprincipleswhichare (a) to assert a primary ole forrevealedtexts in the assessmentof the law, and (b) to preserve ndbolster he authority fthe ulamd'.That Shafi'tderivedhisnotionof ijmd'morefrom theore-tical traditionof juristic/epistemologicalebate than from hepracticalexigencies f uristicdecision-making ay be inferredfromthe fact that he gives no examples of knowledgebasedon it (in spite of his reference o tahlil and tahzrim 1319)).Its practical usefulness uristically ? a Judaic notion) waslimited but its metaphysical mport ? Khriji) was immense-as a tag or slogan reflectinghe unity and infallibilityfthe community.1) A powerfulnd attractivedea ofmarkedrelevanceto the sense of communitydentitywas not rejected(as it mighthave been in view of its possibly ectarianorigins)butwas integratedntoa juristic tructurend as itweretakenon board.

ShfiT's analysis of ikhlildf nd ijmd' was a personalone,inspired by social experience,conditionedby an academictradition and reflectinghis own intellectual insights anddevelopment. His manipulation and definitionof theseconceptswere not final but subject inevitablyto change andinterpretation. Later writersfor the most part abandoned

(1) Wansborough, ibid., 70-71, 86, 121ff.



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80 NORMANCALDERthe notion of ijmdcon a matternot dealt with in revelation.They had a larger body of Traditionsavailable and a moredevelopedand moresubtle exegeticalapparatus. They wereless willing o acknowledge situation hat couldnotbe maderelevant o a textualbase. Ijmdc n later worksofus'l al-fiqhwas nearly always considered a proof togetherwith andsubordinate o revelation-and indeed was frequently nder-stood as ijmdt l-'ulamd'. As a juristicconcept t functionedthenas a stabilising actordefiuing permanent odyofbasicrules ("general knowledge") and acting against change anddevelopment. Fuqahd' wereconstrained o assert tsexistencewheretheywishedto establishor preserve rule,and to denyitsexistencewhen heywished o changeoradapt an establishedrule. 1) 'Progressives' and 'conservatives' varied in theirestimation f how argean area offurd'was coveredby ijmd. 2)The purelyuristicuse of jmdca fairlywell-definednd limitedtechnical term) subsisted with the emotional/metaphysicalusage and created inevitablyproblemsof interpretationndresolution. 3)The processof creatingor re-creating sense of unityandidentitywithinthe Islamic communitywas a continuous ne,necessarilyopposed to intellectualrigidity. Social politicaland economicfactorsnevitablympinged n modes of literaryexpression, emanding esolution. New ntellectual esolutionscontainedlogical or systematicproblemswhich,on a purelyintellectual evel, inspiredreassessments. Given the intellec-tual conservatism nd the group solidarityof the scholarlyelite it was perhaps inevitablethat change and developmentshould rely very largelyon the manipulationor refining fconcepts lready vailablebutwhoserelevance ouldbe changedor renewed. That is the process evident in Shifi'l's work.Ikhlildf nd ijmdcwere but twonotionswhosesignificancend

(1) See the example provided in Calder, 'ZakAt in ImdmtSht'1Jurisprudence',BSOAS XLIV, 1981,p. 472.(2) Cf. bnTaymiyya: ) JYL,.J1 y

Majm"' faldwt bn Taymiyya,30 vols., Riyadh, 1381-3,vol. 20, p. 10.(3) See Hourani, 'The basis of the authorityof consensus', SI, 1964.



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IKHTILAF AND IJMA IN SHAFI 1 'S RISlALA 81connotationswere developed by ShWfi'lnd chargedwith anew relevance. His literaryproductions, hereafter,houghprofoundlynfluential,hemselvesbecame part of a structureconstantly laborated,refined nd re-interpreted.1)

NormanCALDER(Manchester)

(1) I should iketo recordmy hanks oDrJohnWansboroughor eadingndcommentingn an earlierdraught f thisstudy;and to PhilipAlexander ordiscussingome of theproblemsaised.

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Calder, Norman -- Ikhtilaf and Ijma' in Shafi'i 's Risala

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