cannot be used to set aside known texts, because it is presumptive evidence whose validity one cannot affirm with certainty: one cannot be certain that no dissenting opinion exists. Where the absence of dissent is certain, the consensus is definitive. But where one merely considers dissent unlikely, without certainty, the evidence is presumptive. Presumptive evidence cannot override a known text. It may, however, be cited as evidence and given precedence over evidence of lesser probability, while stronger presumptive evidence takes precedence over it. Thus, whenever one considers the meaning indicated by the text more probable than the existence of consensus, one gives precedence to the text’s meaning. Whenever one considers the consensus more probable, one gives precedence to it. In reality, only one position is correct.

If subsidiary rulings on the matter have been reported to him, but the authenticity of the report has not been established, he must refrain from presuming a consensus unless he considers that report unsound. Otherwise, whenever he allows that the person reporting disagreement might be truthful or might be lying, he remains uncertain whether consensus exists. With such uncertainty, he has neither certain nor presumptive knowledge of a consensus. Scriptural evidence cannot be set aside on the basis of something so uncertain.

Yet such a situation does not actually arise: there can never be a consensus that must be followed while conflicting with another, otherwise unopposed text. Nor can there ever be a text that must be followed without anyone in the Muslim community upholding it. Rather, those who uphold it may be unknown to many people.

Al-Tirmidhī said:

“Every hadith in my book has been acted upon by some scholars, except two: the hadith on combining prayers and the hadith on putting the wine-drinker to death.”

Nevertheless, both hadiths have been acted upon by a group of scholars. The hadith on combining prayers has been acted upon by Ahmad and others.