the Book of Liʿān: “Dāwūd’s view that a blemished slave is acceptable as an expiatory offering is opposed by a consensus that al-Shāfiʿī—may Allah have mercy on him—transmitted. He said: ‘In my judgment, had al-Shāfiʿī lived in Dāwūd’s era he would not have regarded him as a scholar.’”

Al-Ibyārī replied: “That, in our view, is categorically unsound. If the question turns on transmitted reports, textual stipulation, or the literal wording of the language, and no analogy contradicts it, consensus cannot be claimed without including them—unless one adopts the position that ijtihād is indivisible. But if we accept its divisibility, nothing prevents us from examining a particular branch in which they are correct, just as we reckon with the opinion of a theologian in a doctrinal issue because he has a rightful competence therein; the same applies to the Ẓāhirīs in non-analogical questions—their dissent is taken into account.”

Ibn al-Ṣalāḥ said: “The matter ultimately settled upon—chosen by al-Ustādh Abū Manṣūr and related from the majority—is that the correct view within the school is to heed their disagreement; for this reason our leading jurists record their opinions in the subsidiary works.” He then added: “The answer I have reached after seeking divine guidance is that Dāwūd’s position is considered and counted in consensus except when it contradicts analogy, or opposes what the analogists unanimously uphold in its various forms, or rests on foundational premises whose invalidity is proven by decisive evidence. In such cases the agreement of everyone else constitutes consensus, and the dissenting view falls outside it—such as his ruling on defecating in stagnant water, those other objectionable issues, and his statement ‘Usury exists only in deferred exchange,’ which is explicitly refuted. His dissent on that and similar matters is disregarded.”

Fourth Issue: Is public renown a requisite for the mujtahid whose opinion is counted in consensus?

Al-Zarkashī in al-Baḥr al-Muḥīṭ (6/430) held that renown is not required. He wrote: “Rather, the view of an obscure mujtahid is taken into consideration, contrary to certain eccentric figures who distinguish the famed jurist and accept his view to the exclusion of others…”

Fifth Issue: Does the dissent of one or two scholars nullify consensus?

Ibn Ḥazm said in al-Iḥkām (4/538): “A group maintained that when the majority agrees upon a position yet a single scholar opposes them, no heed is paid to that lone individual; the view of the majority is consensus.”