Principles of Islamic Jurisprudence by MH kamali

Indeed the rules of reconciliation and preference

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Unformatted text preview: tion must be suspended altogether and both of the conflicting texts are abandoned. [3. Khallaf, `Ilm; p. 229; Khudari, Usul, p.359.] A case of conflict between the nusus and ijma', or between two rulings of the latter, is inconceivable for the obvious reason that no ijma' can be concluded which is contrary to the Qur'an and Sunnah in the first place. Should a conflict arise between two analogies or proofs other than the nusus and ijma'; and neither can be given preference over the other and they cannot be reconciled, both must be suspended. Abrogation in this case does not offer an alternative course of action. For abrogation is basically confined to the definitive rulings of the Qur'an and Sunnah; it is irrelevant to ijma' and can be of little help in cases of conflict between speculative evidences. Among the many instances of abrogation which the ulema have identified in the Qur'an, we may refer to only two; but in both cases a closer analysis will show that the conflict at issue is not genuine. Our first illustration is concerned with the precise duration of the waiting period ('iddah) of widows. According to one of the two ayat on this subject (al-Baqarah, 2:234), the widow must observe a `iddah of four months and ten days following the death of her husband. This ayah consists of a general provision which applies to every widow regardless as to whether she is pregnant at the time her husband dies or not. But elsewhere in the Qur'an, there is another ruling concerning the `iddah of pregnant women. This ayah (al-Talaq, 65:4) also conveys a general ruling to the effect that the `iddah of pregnant women continues until the delivery of the child. This ruling also applies to a pregnant widow, who must wait until the termination of her pregnancy. Thus a pregnant woman whose husband dies and who gives birth to a child on the same day would have completed her `iddah according to the second of the two rulings, whereas she must, under the first ruling, still wait for four months and ten days. The two texts thus appear to be in conflict regarding the `iddah of a pregnant widow. For a second illustration of an apparent conflict in the Qur'an, we refer to the two texts concerning the validity of making a bequest to one's relatives. This is explicitly permitted in sura al-Baqarah (2:180) which provides: `It is prescribed when death approaches any of you, if he leaves any assets, that he makes a bequest to his parents and relatives.' This ruling is deemed to have been abrogated by another Principles of Islamic Jurisprudence ~ Kamali 308 text (al-Nisa', 4:11) which prescribes for each of the close relatives a share in inheritance. This share is obviously determined, not by the will of the testator, but by the will of God. The two texts thus appear to be in conflict; however the conflict is not genuine as they can be reconciled, and both can be implemented under different circumstances. The first of the two rulings may, for example, be reserved for a situation where...
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