Wednesday, 17 January 2018

Theory of Naskh (Abrogation) in Islamic Law


    
 
Contents













Theory of Abrogation (Naskh)

Introduction:

The Qur’anic interpretive tradition that eventually developed and evolved out of a long process of scholarship is known as tafsir (Qur’anic exegesis). Within the body of tafsir, many Qur’anic theories and principles have been developed to address the legal needs and necessities of the society. One of the most interesting Qur’anic legal exegetical theories is the theory of naskh.[1]

The principle of naskh dictates that between the two competing rulings, one rule abrogates the other, rendering the abrogated ruling null and void. The texts which is being abrogated is called the ‘mansukh’, and the text which abrogates is known as the ‘nasikh’.[2]

Though it is generally expressed in such a case that one verse abrogates and replaces the other, technically, what is being abrogated is the ruling and not the text.[3]

And the wisdom behind the theory of Naskh can be summarized as Islamic law works for the interest (maslahah) of human beings. Interests may keep on shifting with a change in circumstances, and the law adjusts accordingly. The law was laid down in the period of the Prophet (PBUH) gradually and in stages. The aim was to bring a society steeped in immorality to observe the highest standards of morality. This could not be done abruptly. It was done in stages, and doing so necessitated repeal and abrogation of certain laws.[4]

Meanings:

Etymologically, naskh in Arabic means effacement, obliteration, change, cancellation, suppression, replacement, substitution, or simply, abrogation.[5] Naskh also means transcription or transfer of something from one state to another while its essence remains unchanged. But According to the majority view, however, obliteration is the primary, and transcription/transfer is the secondary, meaning of naskh.[6] Literally Naskh means annulment, for instance, it is an old Arab saying, that “Nasakha-tushamsi minazali” meaning “the sun annulled the shade”. [7]

Definition:

“Naskh may be defined as the suspension or replacement of one Shari'ah ruling by another, provided that the latter is of a subsequent origin, and that the two rulings are enacted separately from one another”.

The hukm, or ruling, in this definition not only includes commands and prohibitions but also the three intermediate categories of recommended, reprehensible and mubah.[8]

Application:

Qur'an and the Sunnah;
Abrogation applies almost exclusively to the Qur'an and the Sunnah; its application to ijma` and qiyas, has been generally overruled. And even then, the application of naskh to the Qur'an and Sunnah is confined, to the lifetime of the Prophet. The ulema are unanimous on the occurrence of naskh in the Sunnah. It is, however, with regard to the occurrence of naskh in the Qur'an on which there is some disagreement.[9]
Ijma;
Some Hanafi and Mu'tazili scholars have held the view that ijma can abrogate a ruling of the Qur'an or the Sunnah, but the majority of ulema have held that ijma` neither abrogates nor can be abrogated itself; and at any rate ijma cannot abrogate a nass of the Qur'an or the Sunnah. For a valid ijma' may never be concluded in contradiction to the Qur'an or the Sunnah in the first place. Al-Amidi elaborates this as follows:

“For the ijma` which seeks to abrogate the nass of Qur'an or Sunnah is either based on an indication (dalil) or not. If it is not based on any dalil, then it is likely to be erroneous, and if it is based on a dalil this could either be a nass or qiyas. If the basis (sanad) of ijma` is a qiyas, then abrogation is not permissible and if the sanad of ijma` is a nass, then abrogation is by that nass, not by ijma`”.

So in other words, abrogation is not relevant to Ijma.[10]

Qiyas;
Qiyas has no place in the theory of naskh.[11]

Subjects not applicable to Naskh;
There are also certain subjects to which abrogation does not apply. Included among these are provisions pertaining to the;
·         Attributes of God,
·         Belief in the principles of the faith, and
·         The doctrine of tawhid and
·         The hereafter.
·         Another subject is the Shari'ah of Islam itself to which Naskh is not applicable.

The ulema are also in agreement that rational matters and moral truths such as the virtue of doing justice or being good to one's parents, are not changeable and are therefore not open to abrogation.[12]

Conditions;

To summarise the foregoing: no abrogation can take place unless the following conditions are satisfied.

·         First, that the text itself has not precluded the possibility of abrogation.
·         Second that the subject is open to the possibility of repeal.
·         Third that the abrogating text is of a later origin than the abrogated.
·         Fourth that the two texts are of equal strength in regard to authenticity (thubut) and meaning (dalalah).
·         Fifth that the two texts are genuinely in conflict and can in no way be reconciled with one another. And,
·         Lastly, that the two texts are separate and are not related to one another in the sense of one being the condition (shart), qualification (wasf) or exception (istithna') to the other.[13]

Types of Naskh;[14]

Abrogation may either be explicit (sarih), or implicit (dimni).

Explicit (sarih);

In the case of explicit abrogation, the abrogating text clearly repeals one ruling and substitutes another in its place.

In Hadith;
An example of this is the Ahadith which provides:

“I had forbidden you from visiting the graves. Nay, visit them, for they remind you of the hereafter”.

“I had forbidden you from storing away the sacrificial meat because of the large crowds. You may now store it as you wish”.

The initial order not to store the sacrificial meat during the id festival (`id al-Adha). The restriction was later removed as the circumstances had changed.

In Quran;
An example of explicit abrogation in the Quran is the passage in sura al-Baqarah (2: 142-144) with regard to the change in the direction of the qiblah from Jerusalem to the Ka'bah.


Sura al-Baqarah (2:142-144)

The fools among the people (pagans, hypocrites, and Jews) will say, "What has turned them (Muslims) from their Qiblah [prayer direction (towards Jerusalem)] to which they were used to face in prayer." Say, (O Muhammad SAW) "To Allâh belong both, east and the west. He guides whom He wills to a Straight Way." (142)

Thus We have made you [true Muslims - real believers of Islâmic Monotheism, true followers of Prophet Muhammad SAW and his Sunnah (legal ways)], a (just) (and the best) nation, that you be witnesses over mankind and the Messenger (Muhammad SAW) be a witness over you. And We made the Qiblah (prayer direction towards Jerusalem) which you used to face, only to test those who followed the Messenger (Muhammad SAW) from those who would turn on their heels (i.e. disobey the Messenger). Indeed it was great (heavy) except for those whom Allâh guided. And Allâh would never make your faith (prayers) to be lost (i.e. your prayers offered towards Jerusalem). Truly, Allâh is full of kindness, the Most Merciful towards mankind. (143)

Verily! We have seen the turning of your (Muhammad's SAW) face towards the heaven. Surely, We shall turn you to a Qiblah (prayer direction) that shall please you, so turn your face in the direction of Al-Masjid- Al-Harâm (at Makkah). And whosesoever you people are, turn your faces (in prayer) in that direction. Certainly, the people who were given the Scriptures (i.e. Jews and the Christians) know well that, that (your turning towards the direction of the Ka'bah at Makkah in prayers) is the truth from their Lord. And Allâh is not unaware of what they do. (144)

Implicit (dimni);

 

In Quran;
An example of implicit abrogation is the ruling in sura al-Baqarah (2:180) which permitted bequests to one's parents and relatives. This was subsequently abrogated by another text (al-Nisa, 4:11) which entitled the legal heirs to specific shares in inheritance.

Sura al-Baqarah (2:180)
It is prescribed for you, when death approaches any of you, if he leaves wealth, that he make a bequest to parents and next of kin, according to reasonable manners. (This is) a duty upon Al-Muttaqûn (the pious). (180)

Sura al-Nisa, (4:11)
Allâh commands you as regards your children's (inheritance); to the male, a portion equal to that of two females; if (there are) only daughters, two or more, their share is two thirds of the inheritance; if only one, her share is half. For parents, a sixth share of inheritance to each if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers or (sisters), the mother has a sixth. (The distribution in all cases is) after the payment of legacies he may have bequeathed or debts. You know not which of them, whether your parents or your children, are nearest to you in benefit, (these fixed shares) are ordained by Allâh. And Allâh is Ever All¬Knower, All¬Wise. (11)

Imam Shafi'i  at his (Risalah, p. 69) has observed concerning these ayat that the abrogation of bequest to relatives by the ayah of inheritance is a probability only, but he adds that the ulema have held that the ayah of inheritance has abrogated the ayah of bequests.

Total abrogation (naskh kulli) and Partial abrogation (naskh juzi);

Implicit abrogation has been sub-divided into two types, namely total abrogation (naskh kulli) and partial abrogation (naskh juzi).

Total abrogation (naskh kulli);

In this case, the whole of a particular nass is abrogated by another, and a new ruling is enacted to replace it. This may be illustrated by a reference to the two Qur'anic texts concerning the waiting period (`iddah) of widows, which was initially prescribed to be one year but was subsequently changed to four months and ten days.
Sura al-Baqarah
And those of you who die and leave behind wives should bequeath for their wives a year's maintenance and residence without turning them out, but if they (wives) leave, there is no sin on you for that which they do of themselves, provided it is honourable (e.g. lawful marriage). And Allâh is All-Mighty, All-Wise. (240)

And those of you who die and leave wives behind them, they (the wives) shall wait (as regards their marriage) for four months and ten days, then when they have fulfilled their term, there is no sin on you if they (the wives) dispose of themselves in a just and honourable manner (i.e. they can marry). And Allâh is Well-Acquainted with what you do (234)

As can be seen, the provision concerning the waiting period of widows in the first ayah has been totally replaced by the new ruling in the second. But it is not certain whether they are genuinely in conflict, for the term `a year's maintenance and residence' in the first ayah does not recur in the second.

 

Partial abrogation (naskh juzi);

Partial abrogation (naskh juz'i ) is a form of naskh in which one text is only partially abrogated by another, while the remaining part continues to be operative. An example of this is the Qur'anic ayah of qadhf (slanderous accusation) which has been partially repealed by the ayah of imprecation (li'an).

Sura al Nur (24:4)
And those who accuse chaste women, and produce not four witnesses, flog them with eighty stripes, and reject their testimony forever, They indeed are the Fâsiqûn (liars, rebellious, disobedient to Allâh). (4)


Sura al Nur (24:6)
And for those who accuse their wives, but have no witnesses except themselves, let the testimony of one of them be four testimonies (i.e. testifies four times) by Allâh that he is one of those who speak the truth. (6)

The first ayah lays down the general rule that anyone, be it a spouse or otherwise, who accuses chaste women of zina must produce four witnesses for proof. The second ayah provides that if the accuser happens to be a spouse who cannot provide four witnesses and yet insists on pursuing the charge of zina, he may take four solemn oaths to take the place of four witnesses. This is to be followed, as the text continues, by a statement in which the husband invokes the curse of God upon himself if he tells a lie.

naskh al-tilawah and naskh al-hukm wa al-tilawah;

The other two varieties of naskh, respectively referred to as naskh al-tilawah (sometimes as naskh al-qira'ah), that is, abrogation of the words of the text while the ruling is retained, and naskh al-hukm wa al-tilawah, that is, abrogation of both the words and the ruling - are rather rare and the examples which we have are not supported by conclusive evidence.[15]

Text of Quran and Naskh;

Text of the Qur'an has two distinctive features, namely, the words of the text, and the ruling, or the hukm that it conveys. Reading and reciting the words of the Qur'an, even if its ruling is abrogated, still commands spiritual merit. The words are still regarded as part of the Qur'an.[16]

Abrogation of Quran and Sunnah by one another;[17]

According to the majority (jumhur) view, the Qur'an and the Sunnah may be abrogated by themselves. In this sense, abrogation may be once again classified into the following varieties:
(1)   Abrogation of the Qur'an by the Qur'an, which has already been illustrated.
(2)   Abrogation of the Sunnah by the Sunnah. This too has been illustrated by the two ahadith under the explicit abrogation.
(3)   Abrogation of the Qur'an by Sunnah. An example of this is the ayah of bequest in sura al-Baqarah (2:180)

Sura al-Baqarah (2:180)
It is prescribed for you, when death approaches any of you, if he leaves wealth, that he make a bequest to parents and next of kin, according to reasonable manners. (This is) a duty upon Al-Muttaqûn (the pious). (180)

Which has been abrogated by the Hadith which provides that;

“There shall be no bequest to an heir”

But there remains little doubt that it has been abrogated by the Sunnah'.

(4)   Abrogation of the Sunnah by the Qur'an. An example of this is the initial ruling of the Prophet which determined the qiblah in the direction of Jerusalem.

Sura al-Baqarah (2:144)
And whosesoever you people are, turn your faces (in prayer) in that direction. Certainly, the people who were given the Scriptures (i.e. Jews and the Christians) know well that, that (your turning towards the direction of the Ka'bah at Makkah in prayers) is the truth from their Lord. And Allâh is not unaware of what they do. (144)

Exception;

The main exception to the foregoing classification of naskh is taken by Imam Shafi'i, the majority of the Mu'tazilah, and Ahmad b. Hanbal who have validated the first two types of abrogation, but have overruled the validity of the remaining two. In their view, abrogation of the Qur'an by the Sunnah and vice versa is not valid.

Imam Shafi'i has drawn from his interpretation from

Sura al-Nahl (16:101)
And when We change a Verse [of the Qur'ân) in place of another. And Allâh knows the best what He sends down (101)

This text, according to al-Shafi`i, is self-evident on the point that an ayah of the Qur'an can only be abrogated or replaced by another ayah.

Further in Quran
Sura Yunus (10:15)
And when Our Clear Verses are recited unto them, those who hope not for their meeting with Us, say: Bring us a Qur'ân other than this, or change it. "Say (O Muhammad SAW): "It is not for me to change it on my own accord; I only follow that which is revealed unto me. Verily, I fear the torment of the Great Day (i.e. the Day of Resurrection). If I were to disobey my Lord." (15)

Imam Shafi further emphasized that only the Sunnah can abrogate the Sunnah;

Mutawatir by Mutawatir and Ahad by Ahad. Mutawatir may abrogate the Ahad, but there is some disagreement on whether the Ahad can abrogate the Mutawatir. And considers it necessary for the abrogation of Sunnah that the Prophet should have informed the people specifically about it.

Specification (Takhsis) and Addition (Taz'id)[18]


Naskh and takhsis;

Naskh and takhsis resemble one another in that both tend to qualify or specify an original ruling in some way. But a certain amount of confusion has also arisen between naskh and takhsis due to conceptual differences between the Hanafis and the majority of ulema regarding naskh in that they tend to view naskh differently from one another.

Difference;

Naskh and takhsis differ from one another in that
1)      There is no real conflict in takhsis.
2)      Naskh can occur in respect of either a general or a specific ruling whereas takhsis can, by definition, occur in respect of a general ruling only.
3)      Naskh is basically confined to the Qur'an and Sunnah and could only be effected by the explicit rulings of divine revelation. Takhsis on the other hand could also occur by means of rationality and circumstantial evidence, (`aql ), custom (`urf) and other rational proofs.
4)      In naskh it is essential that the abrogator (al-nasikh) be later in time than the ruling which it seeks to abrogate. But this is not a requirement of takhsis.
5)      Naskh does not apply to factual reports of events (akhbar) whereas takhsis could occur in regard to factual reports.

Naskh and Tazid;

Another issue which arises concerning naskh is whether a subsequent addition (taz'id) to an existing text, which may be at variance with it, amounts to its abrogation. The majority of ulema have answered this question in the negative, holding that the new addition does not overrule the existing law but merely adds a new element to it. But Hanafis have held that such an addition does amount to abrogation.

Criticism on Naskh;[19]

While al-Suyuti has claimed, in his Itqan fi `Ulum al-Qur'an, twenty-one instances of naskh in the Qur'an, Shah Wali Allah (d. 1762) has only retained five. Abu Muslim al-Isfahani (d. 934) has, on the other hand, denied the incidence of abrogation in the Qur'an altogether.

The majority of ulema have nevertheless acknowledged the incidence of naskh in the Qur'an on the authority of the Qur'an itself. This is the conclusion that the majority have drawn from the relevant Qur'anic passages.

Sura al-Baqarah, (2:106)
Whatever a Verse (revelation) do We abrogate or cause to be forgotten, We bring a better one or similar to it. Know you not that Allâh is able to do all things? (106)

Sura al-Nahl (16:101)
And when We change a Verse [of the Qur'ân) in place of another. And Allâh knows the best what He sends down (101)

To some commentators, the word “ayah” to these passages refers, not to the text of the Qur'an itself, but to previous scriptures including the Torah and the Gospel. To al-Isfahani, the word “ayah” in these passages means not a portion of the Qur'anic text, but “miracle”. God empowered each of His Messengers with miracles that none other possessed.
According to Sir Sayyid Ahmad Khan vehemently refuted it. According to him the word ‘naskh’ in the Qur'anic verse 2: 106 meant the abrogation of the codes of law revealed to the earlier Prophet.[20]

But the proponents of naskh have stated that the incidence of naskh in the Qur'an is proven, not only by the Qur'an itself, but also by a conclusive ijma. Anyone who opposes it is thus going against the dictates of ijma.
















Bibliography

·         (2015, 01 02). Retrieved from thelawstudy.blogspot.com: http://thelawstudy.blogspot.com/2015/02/doctrine of abrogation naskh. html
·         hassan, A. (1965). The Theory of Naskh. Dr Muhammad Hamidullah Library IIUI.
·         kamali, M. H. (1991). Principles of Islamic Jurisprudence. International Islamic University, Malaysia.
·         Rahim, R. A. (2011). 'Naskh al quran' a theological and juridical reconsideration of the theory of abrogation and its impact on quranic exegesis. PhD thesis. Temple University.







[1] Roslan Abdul-Rahim ‘NASKH Al-QUR’AN A Theological And Juridical Reconsideration Of The Theory Of Abrogation And Its Impact On Qur’anic Exegesis’ (PhD thesis, Temple University 2011)
[2] Ibid.
[3] Ibid.
[4] 'Doctrine of Abrogation (Naskh)' (Blogspotcom, no-date) <http://thelawstudy.blogspot.com/2015/02/doctrine-of-abrogation-naskh.html> accessed 15 January 2018
[5] Ibid.
[6] M h kamali, Principles of Islamic Jurisprudence (International Islamic University, Malaysia 1991) 139.
[7] Ahmad hassan, 'The theory of Naskh' [1965] 1(1) Dr Muhammad Hamidullah Library, IIU, Islamabad <http://iri.iiu.edu.pk/> accessed 12-Jan-2018
[8] Ibid.
[9] Ibid.
[10] Ibid. 140.
[11] Ibid. 141.
[12] Ibid. 142.
[13] Ibid.
[14] Ibid. 143-146
[15] Ibid. 146
[16] Ibid. 145
[17] Ibid. 145-148
[18] Ibid. 149-150
[19] Ibid. 150-152.
[20] Roslan Abdul-Rahim ‘NASKH Al-QUR’AN A Theological And Juridical Reconsideration Of The Theory Of Abrogation And Its Impact On Qur’anic Exegesis’ (PhD thesis, Temple University 2011)

No comments:

Post a Comment