Tacit consensus (ijmāʿ sukūtī)

Al-Shinqīṭī says in his Mudhakkirah (p. 188): “This issue may arise in three situations:

1. If the surrounding circumstances make it clear that the one who remains silent is actually pleased with the view that has been expressed, then—by unanimous agreement—it counts as consensus.

2. If the circumstances show that he is displeased and does not agree, then—again by unanimous agreement—it is not consensus.

3. If neither approval nor disapproval can be determined, the matter is subject to the three opinions mentioned earlier. According to the majority, it is a form of tacit consensus and therefore only presumptive in force.” End quote.

I say: The three opinions to which the Shaykh alludes are those he sets out elsewhere in the following words: “When some Companions voice a ruling concerning a legal obligation and the report spreads among the rest of the Companions, who then remain silent, there are three views on the matter, and the sound position is that it constitutes a conjectural tacit consensus:

1. That it is outright consensus. A narration from Aḥmad indicates this, and it is also the view of most Shāfiʿīs and Mālikīs, who take silence to signify approval and agreement. Two conditions apply: (a) it must not be known that any silent Companion is in fact displeased with the view, and (b) a period long enough for proper reflection on the ruling must have elapsed after they heard it.

2. That it is an authoritative proof but not consensus.

3. That it is neither proof nor consensus.” End quote.

I add: Al-Shawkānī, in Irshād al-Fuhūl (pp. 153–155), lists twelve different opinions on this question, and ʿAbd al-ʿAzīz al-Bukhārī, in Kashf al-Asrār (3/228), labels this type of consensus a “rukhsah” (dispensation).