Principles of Islamic Jurisprudence by MH kamali

An example of implicit abrogation is the ruling in

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: could both be implemented in certain cases, [21. Shafi'i (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. On the same page, Shafi'i quotes the Hadith that `there shall be no bequest to an heir.' It thus appears that in his view, the abrogation of bequest to legal heirs in the Qur'an is a probability which has been confirmed and explained by this and other ahadith on the subject.] the majority of ulema have held that the initial ruling which validated bequests to relatives has been abrogated by the rules of inheritance. They have held that the ayah of inheritance prescribes specific portions for legal heirs which can be properly implemented only if they were observed in their entirety, and that the Qur'anic scheme of inheritance is precise and selfcontained, and any outside interference is likely to upset the individual shares as well as the overall balance between them. Since bequest to legal heirs is seen as a principal source of such interference it is totally forbidden. This analysis is substantiated by the explicit ruling of a Hadith in which the Prophet is reported to have said, `God has assigned a portion to all who are entitled. Hence there shall be no bequest to legal heirs.' [22. Shafi'i, Risalah, p. 69; Abu Dawud, Sunan, II, 808, Hadith no. 2864; Khallaf, `Ilm, p. 224.] Implicit abrogation has been sub-divided into two types, namely total abrogation (naskh kulli) and partial abrogation (naskh juzi). In the case of the former, 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. The two texts are as follows: 1. Those of you who are about to die and leave widows should bequeath for their widows a year's maintenance and residence; but if they leave the residence, you are not responsible for what they do of themselves (al-Baqarah, 2:240). 2. 3. Those of you who die and leave widows, the latter must observe a waiting period of four 4. months and ten days; when they have fulfilled their term, you are not responsible for what they do of themselves (al-Baqarah, 2:234) 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. There is no doubt on the point that both of these rulings are exclusively concerned with the same subject, namely, the widows. Both ayat require them to observe a waiting period, whose length varies in each, and only one must be observed, not both. The two passages are thus in conflict and the latter abrogates the former. But this is a case, as already noted, of an implicit naskh, in that the two ayat do not expound, with complete clarity, all the facts of abrogation and it is not ce...
View Full Document

Ask a homework question - tutors are online