Principles of Islamic Jurisprudence by MH kamali

24 abu zahrah usul p72 the distinction as to whether

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Unformatted text preview: tention is paid not only to the grammatical form of the words in which it is conveyed, but also to the general objectives of the law. This is equally true of a prohibitory text. To determine whether a prohibition conveys actual tahrim, or mere reprehension (karahah) is not always easily understood from the words of the nusus. Only a portion of the nusus convey a precise meaning by virtue of clarity of their language. In Shatibi's estimation, a much larger portion of the nusus of the Qur'an cannot be determined by reference only to the linguistic forms in which they are expressed. The mujtahid must therefore be fully informed of the general principles and objectives of the Shari'ah so as to be able to determine the precise values of the nusus and the commands or prohibitions that they contain. [25. Shatibi, Muwafaqat, III, 90.] Principles of Islamic Jurisprudence ~ Kamali 138 Chapter Seven: Naskh (Abrogation) Literally, naskh means 'obliteration', such as in nasakhat al-rih athar al-mashy, meaning 'the wind obliterated the footprint'. Naskh also means transcription or transfer (al-naql wa al-tahwil) of something from one state to another while its essence remains unchanged. In this sense, 'naskh' has been used in the Qur'anic ayah which reads: inna kunna nastansikhu ma kuntum ta'malun, that is, 'verily We write all that you do' (al-Jathiyah, 45:29). This usage of naskh can also be seen in the familiar Arabic expressions, tanasukh al-arwah (reincarnation), and tanasukh al-mawarith, the transfer of inheritance from persons to persons. The ulema have differed as to which of these two meanings of naskh is the literal (haqiqi) as opposed to that which might be metaphorical (majazi). Some ulema, including Abu Bakr al-Baqillani and al-Ghazali, have held that 'naskh' is a homonym and applies equally to either of its two meanings. According to the majority view, however, obliteration (al-raf wa al-izalah) is the primary, and transcription/transfer is the secondary, meaning of naskh. 102ff; Hitu, Wajiz, p.241.] [1. Ghazali, Mustasfa, I, 69; Amidi, ahkam, III, 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. According to this definition, naskh operates with regard to the rules of Shari'ah only, a proviso which precludes the application of naskh to rules that are founded in rationality (aql) alone. The hukm, or ruling, in this definition not only includes commands and prohibitions but also the three intermediate categories of recommended, reprehensible and mubah. The requirement that the two rulings must be separate means that each must be enacted in a separate text. For when they both occur in one and the same passage, it is likely that one complements or qualifies the other, or that one may embody a condition or an exception to the other. [2. Badran, Usul, p. 442.] Abrogation applies almost exclusively to...
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