Consensus (ijmaa‘) and analogy (qiyaas) and their application in the modern context

Consensus (ijmaa‘) and analogy (qiyaas) both come under the heading
of evidence based on general principles on which shar‘i rulings may be
based. Consensus comes after Qur’an and Sunnah in the list of shar‘i
evidence. 

From a
linguistic point of view, the word ijmaa‘ may refer to two things:

1.Decision, as in the verse in which Allah, may He be exalted, says
(interpretation of the meaning): “So decide upon your course of action
[fa ajmi‘u]” [Yoonus 10:71].

2.Agreement, as it is said Ajma‘at al-jamaa‘ah ‘ala kadha [the
group agreed upon such and such]. 

In
Islamic terminology, it was defined by az-Zarkashi (may Allah have mercy on
him) as follows: It is the unanimous agreement of the mujtahid scholars of
the ummah of Muhammad (blessings and peace of Allah be upon him) after his
death concerning some issue at any particular time.

End
quote from al-Bahr al-Muheet by az-Zarkashi, 6/379 

From
this definition it is known that certain conditions must be met for there to
be consensus, which are:

1.The agreement should be among the mujtahid scholars of the ummah of
Muhammad (blessings and peace of Allah be upon him); this excludes the
consensus of previous nations.

2.It should come after the death of the Prophet (blessings and peace of
Allah be upon him)), because consensus during his lifetime is of no
significance.

3.It should come at a particular time, so that no one will think that
what is meant is the consensus of all mujtahid scholars throughout all ages
until the Day of Resurrection, because that is impossible. 

Consensus constitutes shar‘i proof, because it is based on the idea that the
ummah as a whole is infallible and that it cannot agree on misguidance. This
is proven by the texts of the Sunnah. At-Tirmidhi (2167) narrated from Ibn
‘Umar that the Messenger of Allah (blessings and peace of Allah be upon him)
said: “Allah will not cause my ummah – or the ummah of Muhammad (blessings
and peace of Allah be upon him) – to agree on misguidance.”

Classed as saheeh by al-Albaani in Saheeh al-Jaami‘ as-Sagheer, no.
1848 

Ahmad
narrated in his Musnad (27224) from Abu Basrah al-Ghifaari, the
companion of the Messenger of Allah (blessings and peace of Allah be upon
him) that the Messenger of Allah (blessings and peace of Allah be upon him)
said: “I asked my Lord, may He be glorified and exalted, for four things,
and He granted me three of them and withheld one from me. I asked Allah, may
He be glorified and exalted, not to cause my ummah to agree on misguidance,
and He granted me that.” 

Some
Qur’anic texts support this principle too, such as the verse in which Allah,
may He be exalted, says (interpretation of the meaning): “And
whoever contradicts and opposes the Messenger (Muhammad SAW) after the right
path has been shown clearly to him, and follows other than the believers’
way. We shall keep him in the path he has chosen, and burn him in Hell –
what an evil destination”
[an-Nisa’ 4:115].
In this verse, He makes it obligatory to follow the way of the believers and
warns against differing from them. This indicates that when they are
unanimously agreed on something, it must be sound, because if it were
possible for them to agree on a mistake, then the one who is told to follow
them would be being told to follow them in their mistakes, but what Allah
enjoins us to follow can only be true and correct. 

See:
al-Fusool fi’l-Usool, 3/262 

Shaykh
al-Islam Ibn Taymiyah said: The consensus of this ummah constitutes shar‘i
proof, because Allah, may He be exalted, has told us that they enjoin all
that is good and forbid all that is evil. If they agreed on making
permissible something that is forbidden, or waiving an obligatory duty, or
prohibiting something that is permissible, or saying something false about
Allah, may He be exalted, or any of His creation, that they would be
described as enjoining what is evil and forbidding what is good.

End
quote from Majmoo‘ al-Fataawa, 28/125 

Hence
it is known that Allah, may He be exalted, has protected the ummah of
Muhammad (blessings and peace of Allah be upon him) from agreeing on
misguidance or error. There is a subtle reason for this that was explained
by az-Zarkashi when he said: The reason why only this ummah was given this
quality of only agreeing on what is correct is that they are now the only
believing group on earth, because the Prophet (blessings and peace of Allah
be upon him) was sent to all mankind, whereas the Prophets who came before
him were sent only to their own peoples, so the followers of each one were
only part of the total number of believers. Therefore each community was not
the only one that was the believing group in any particular era. But in the
case of this ummah, the believers are all in this ummah (and not anywhere
else), and the hand of Allah is with the jamaa‘ah (main body of Muslims).
Hence – and Allah knows best – they were given the privilege of agreeing
only on that which is sound and correct.

End
quote from al-Bahr al-Muheet, 6/396 

Examples of consensus (ijmaa‘): 

There
are no examples of consensus at the time of the Prophet (blessings and peace
of Allah be upon him) because, as we explained above, consensus can only be
valid after the death of the Prophet (blessings and peace of Allah be upon
him). Al-Aamidi said: The consensus of those who lived at the time of
revelation does not constitute proof or evidence at the time of revelation,
according to scholarly consensus. Rather it only constitutes proof or
evidence after the death of the Prophet (blessings and peace of Allah be
upon him).

End
quote from al-Ihkaam fi Usool al-Ahkaam, 1/213 

With
regard to examples after the death of the Prophet (blessings and peace of
Allah be upon him), there are many examples, including, for example: 

The
consensus of the scholars on the prohibition on building new churches in
Muslim lands. This consensus was narrated by Shaykh al-Islam Ibn Taymiyah.
It says in al-Furoo‘ wa Tasheeh al-Furoo‘ (10/338): They are to be
prevented from building new churches and synagogues. Our shaykh (Ibn
Taymiyah) stated that there was consensus on this point. End quote. It says
in al-Insaaf fi Ma‘rifat ar-Raajih min al-Khilaaf by al-Mirdaawi
(4/236): They are to be prevented from building new churches and synagogues.
Shaykh Taqiy ad-Deen (may Allah have mercy on him) stated that there was
consensus on this point. Our companions made an exception for what they (the
Jews and Christians) stipulated at the time of making peace deals, if they
said “These are ours.” It was also narrated by as-Subki. It says in
Fataawa as-Subki (2/369): Building (new) churches is forbidden,
according to scholarly consensus. End quote. 

There
are several modern examples of consensus, such as the consensus of Muslim
scholars that it is forbidden to play the role of the Prophet (blessings and
peace of Allah be upon him) or other Prophets and Messengers of Allah
(blessings and peace of Allah be upon them) in movies and TV shows. This
consensus was mentioned by Shaykh Bakr Abu Zayd (may Allah have mercy on
him) when he said: Those scholars who allowed acting within certain
guidelines are unanimously agreed that it – playing certain roles – is
prohibited in the case of the Prophets and Messengers of Allah (blessings
and peace of Allah be upon them), and that it is prohibited in the case of
the Mothers of the Believers, the wives of the Prophet (blessings and peace
of Allah be upon him) and his descendants (peace be upon them), and in the
case of the Rightly Guided Caliphs (may Allah be pleased with them).

End
quote from Hukm at-Tamtheel, 1/43 

With
regard to analogy (qiyaas): 

This
is evidence on which shar‘i rulings may be based; it comes after consensus.
In linguistic terms it refers to comparing and seeing similarities. In
Islamic terminology, it was defined by Ibn Qudaamah as follows: Giving a
ruling concerning a novel issue (i.e., one that is not directly mentioned in
shar‘i texts) that is the same as the ruling on a basic issue (i.e., one
that is directly mentioned in shar‘i texts), on the basis of some common
factor between the two issues.

End
quote from Rawdat an-Naazir wa Jannat al-Manaazir, 2/141 

What
is meant by giving the same ruling on a novel issue as that given on a basic
issue is putting it under the same category and giving it the same ruling. 

There
are four pillars or components of analogy: the basic issue, the novel issue,
the ruling and the common factor. 

These
components may be understood further by giving an example. If we say, for
example, that nabeedh is an intoxicant, then it is haraam like khamr (wine).
In this case the basic issue is khamr. This is called the basis of the
analogy, which is the issue or item of which the text speaks or on which
there is consensus. 

The
novel issue is nabeedh, which is the matter concerning which analogy is
made. This is the matter concerning which there is no text or consensus; it
is the issue for which we want to find the shar‘i ruling. 

The
ruling is that it is prohibited. This refers to a ruling that is proven
concerning the basic issue, whether on the basis of a text or consensus, and
whether the ruling is one of prohibition or otherwise, which we want to
transfer to the novel issue concerning which there is no evidence or direct
mention in any text. 

The
common factor is intoxication. The factor is the reason for which the
Lawgiver issued a ruling concerning the basic issue. 

It is
worth noting that the Prophet (blessings and peace of Allah be upon him)
used analogy in his fatwas to point out this principle to the people and
teach it to them. 

For
example: 

Al-Bukhaari (1852) narrated from Ibn ‘Abbaas (may Allah be pleased with him)
that a woman from Juhaynah came to the Prophet (blessings and peace of Allah
be upon him) and said: My mother vowed to perform Hajj, but she did not
perform Hajj before she died; can I perform Hajj on her behalf? He said:
“Yes, perform Hajj on her behalf. Don’t you think that that if your mother
owed a debt, wouldn’t you pay it off? So pay off the debt owed to Allah, for
Allah is more deserving of having debts owed to Him being paid off.” 

Muslim
(1148) narrated from Ibn ‘Abbaas (may Allah be pleased with him) that a
woman came to the Messenger of Allah (blessings and peace of Allah be upon
him) and said: My mother has died and she owed one month (of fasting). He
said: “Don’t you think that if your mother owed a debt, you would pay it off
on her behalf?” She said: Yes. He said: “The debt owed to Allah is more
deserving of being paid off.” 

It
says in al-Fudool fi’l-Usool (4/48): … Another example is the hadeeth
of Ibn ‘Abbaas: A man came to the Prophet (blessings and peace of Allah be
upon him) and said: My father is a very old man and he has not performed
Hajj; should I perform Hajj on his behalf? He said: “Don’t you think that if
your father owed a debt, wouldn’t you pay it off?” He said: Yes. He said:
“So perform Hajj on his behalf.” 

According to another hadeeth, a woman from Khath‘am asked the Prophet
(blessings and peace of Allah be upon him): “The obligation of Hajj has come
when my father is an old man and he cannot sit firmly on his mount; can I
perform Hajj on his behalf? He said: “Don’t you think that if your father
owed a debt, and you paid it off, wouldn’t that be sufficient?” She said:
Yes. He said: “The debt owed to Allah is more deserving of being paid off.” 

Ibn
‘Abbaas narrated that a man came to the Prophet (blessings and peace of
Allah be upon him) and said: My sister vowed to perform Hajj, but then she
died. The Messenger of Allah (blessings and peace of Allah be upon him)
said: “Don’t you think that if she owed a debt, wouldn’t you pay it off?”
She said: Yes. He said: “So pay off the debt owed to Allah, for it is more
deserving of being paid off.” 

These
reports affirm the principle of analogy and highlight the comparison of
matters to others that are similar. It was narrated from Muhammad ibn
al-Munkadir that the Messenger of Allah (blessings and peace of Allah be
upon him) was asked about making up missed Ramadan fasts: could they be done
separately (not one after the other)? He said: “What do you think, if a man
owes a debt to another man, and he starts to pay it off little by little?”
He said: There is nothing wrong with that. He said: “And Allah is more
generous and easy-going.” Thus he gave an analogy and highlighted points of
similarity. 

Another example is the hadeeth of ‘Umar who said: I got excited and kissed
(my wife) whilst I was fasting, then I said: O Messenger of Allah, today I
did something serious; I kissed (my wife) whilst I was fasting. He said:
“What you think, if you rinse your mouth with water whilst you are fasting?”
I said: There is nothing wrong with it. He said: “So what is the problem?”
The Messenger of Allah (blessings and peace of Allah be upon him) gave an
analogy and pointed out something similar. End quote. 

With
regard to the modern application of analogy, one example is that of DNA
testing as compared with the skill of examining the features of fathers and
children to detect similarities and family resemblance, and confirm
parenthood. The Islamic Medical Science Organisation, in its eleventh
session, in which they dealt with the topic of genetic engineering, the
human genome and genetic treatment, which was held in Kuwait, 23-25 Jumaada
ath-Thaaniyah 1419 AH/13-15 October 1998 CE, was of the view that: DNA
testing, from a scientific point of view, is an almost foolproof means of
establishing biological paternity and determining the identity of an
individual, especially in the field of forensics. It has reached a level of
definitive proof that is accepted by the majority of fuqaha’ in matters
other than issues related to hadd punishments. This view was supported by
the Islamic Fiqh Council belonging to the Muslim World League during its
sixteenth session which was held in Makkah al-Mukarramah, 21-26 Shawwaal
1421 AH, on condition that all its conditions are completely fulfilled, as
it says in its recommendations that “If DNA testing completely fulfils all
its conditions, and human error is avoided, then its results are virtually
definitive in proving or disproving paternity of children.” 

Another example is comparing taking a certain amount of blood in the case of
one who is fasting, to the procedure of cupping, as we have discussed in
fatwa no. 50406

And
Allah knows best.