Third Issue: Whether the Ẓāhirīs are factored into consensus (ijmāʿ)
Al-Zarkashī says in al-Baḥr al-Muḥīṭ (6/424–425): “A group of scholars—among them al-Qāḍī Abū Bakr and al-Ustādh Abū Isḥāq al-Isfarāyīnī, and he even ascribed the view to the majority—held that the dissent of anyone who rejects analogical reasoning (qiyās) in legal questions is not to be counted. Imām al-Ḥaramayn and al-Ghazālī followed them. They argued that whoever denies qiyās is unfamiliar with the pathways of ijtihād; he fastens on the mere outward wording of texts and is therefore like a layman who possesses no real knowledge.”
Al-Ustādh Abū Manṣūr transmitted this position from Abū ʿAlī ibn Abī Hurayra and a number of his contemporaries. Al-Iṣfahānī, the commentator on al-Maḥṣūl, added: “Anyone who says this must likewise disregard the dissent of those who deny the very notion of textual generality or the authority of a solitary report, and of anyone who sides with them.”
I say: The Ustādh further reported from Ibn Abī Hurayra—may Allah be pleased with him—that he carried his ruling through to cover anyone who rejects single-chain reports or hesitates over the outward wording of texts or their general import. He said: “Legal rulings are derived from these foundational sources; whoever denies them or vacillates about them is not a mujtahid, so his dissent is not taken into account.”
Al-Nawawī, in the chapter on the tooth-stick (siwāk) of his commentary on Muslim, wrote: “Dāwūd’s dissent does not vitiate the formation of consensus upon the preferred view held by the majority of scholars and the verifying authorities.” The author of al-Mufhim likewise observed: “The great bulk of jurists and legal theorists do not count their dissent at all; rather, they class them among the laity. Anyone who does count them only does so because his own methodology considers the dissent of laymen capable of forestalling consensus—but the truth is otherwise.” Others have said that, in matters of the Sacred Law, they are like the Sophists in matters of rational inquiry.
Abū Bakr al-Rāzī of the Ḥanafīs declared: “Their dissent is not considered, nor is their agreement reassuring.” Qāḍī ʿAbd al-Wahhāb said in al-Mulakhkhaṣ: “Their dissent is weighed exactly like that of those who reject mursal reports, deny textual generality, or insist that a command denotes mere recommendation, for the framework of jurisprudence is built upon these methods.”
Ibn al-Ṣalāḥ, quoting al-Ustādh Abū Manṣūr, related from Ibn Abī Hurayra and others that their dissent is ignored in subsidiary matters (furūʿ) but taken into account in doctrinal fundamentals (uṣūl). Imām al-Ḥaramayn stated: “The scrutinising scholars attach no weight to the dissent of the Ẓāhirīs, for the greater part of the Sharia issues from ijtihād, and the explicit texts do not comprise a tenth of it.” And he said in