The Consensus of People Without Objection: A Jurisprudential Study

Abstract

This research provides a preliminary investigation into a controversial legal proof in Islamic law known as "The Consensus of People Without Objection." This research attempts to de-mystify the norms, scope, and limits of this less-researched proof as a subject within the field of Uṣūl al-Fiqh by organizing its application and safeguarding it from abuse. The research also critically analyses the juristic issues famously listed by al-Zarkashī to be based upon this evidence—e.g., commissioned production and rennet purity—and concludes that these rulings were indeed derived principally from juristic preference in response to consensus, practice, or text, not on "universal practice without objection" as autonomous evidence. The study adopts a descriptive and analytical method, adopting the linguistic and technical connotations of the proof, separating it from such concepts as tacit agreement, usage, and juristic predisposition, and critically examining its authority. The article also criticizes the misuse of the same proof in later periods to justify innovations, like communal supplication after prayer and awarding the reward for recitation of the Qur'an to the deceased, where historical resistance has been well-documented. One of the conclusions is that such evidence is relatively probative. Its reliability is based on the context of history: in relation to acts of worship, it holds only if the reported consensus occurred when the period of the Companions and Successors was still operative before religious innovations had spread. In matters of transactions, it can serve as evidence, having a penchant to default to established principles of custom, necessity, and relief from hardship