legal theory the consensus of all specialists in uṣūl, and in grammar the consensus of all grammarians. Ibn Jinnī, however, dissented, asserting in his work al-Khaṣāʾiṣ that the agreement of the grammarians carries no legal weight… End of citation.

(Issue Two) The extent to which the opinion of an innovating mujtahid is taken into account when establishing ijmāʿ

Abū Bakr al-Rāzī states in al-Fuṣūl (3/293): “We know of no explicit statement from our predecessors that details the persons through whom ijmāʿ is constituted or describes their qualifications. The scholars who came after them have disagreed on the matter. Some maintained that ijmāʿ, which acts as a proof for Allah—Exalted is He—comes into being only when every faction of the ummah, whether upon truth or led astray by heretical doctrines, is unanimous. Others said that the concurrence of the misguided counts for nothing, because soundness is a condition for a valid ijmāʿ; accordingly, the ijmāʿ that serves as proof for Allah—Exalted is He—is the consensus of the people of truth, those whose iniquity or deviation has not been established. Abū Bakr concluded: This is the position we hold to be sound.” End of quote.

I say: al-Zarkashī has set out the various scholarly views on this question in al-Baḥr al-Muḥīṭ (6/419), where he writes:

1. His opinion is taken into account, because he is one of the ahl al-ḥall wa’l-ʿaqd (those vested with authority), and his word about himself is accepted so long as he believes lying to be forbidden. Al-Hindī declared this the correct position, and—as we shall see—the words of Ibn al-Samʿānī suggest that it is also the view of al-Shāfiʿī, for he explicitly accepted the testimony of people of heterodox leanings.

2. His opinion is not taken into account. Al-Ustādh Abū Manṣūr said: The Ahl al-Sunnah do not consider the agreement of the Qadarites, Khārijites or Rāfiḍites when establishing ijmāʿ, nor is their dissent deemed relevant in matters of fiqh, even though it is considered in theological debate. This was related by Ashhab from Mālik, by al-ʿAbbās ibn al-Walīd from al-Awzāʿī, and by Abū Sulaymān al-Jawzjānī from Muḥammad ibn al-Ḥasan. Abū Thawr recorded in his Manthūrāt that this is likewise the position of the leading ḥadith authorities. End of quote.

Abū Bakr al-Ṣayrafī said: “Does the dissent of the Khārijites vitiate an ijmāʿ? There are two opinions. Moreover, anyone who is a scholar remains within the scope of ijmāʿ, even if he is swayed by various leanings—such as transmitters who espouse qadar, those inclined to irjāʾ, and the like.”