Principles of Islamic Jurisprudence by MH kamali

It is thus inconceivable that a qiyas be abrogated

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Unformatted text preview: ounted as two ijtihadi opinions without the one necessarily abrogating the other. For the rule concerning ijtihad is that the mujtahid deserves a reward for his effort even if his ijtihad is incorrect. In short, naskh basically applies to binding proofs, and qiyas is not one of them. [10. Amidi, Ihkam, III, 163ff; Badran, Usul, p. 459.] In his Risalah, Imam Shafi'i has maintained the view that naskh is not a form of annulment (ilgha'); it is rather a suspension or termination of one ruling by another. Naskh in this sense is a form of explanation (bayan) which does not entail a total rejection of the original ruling. [11. Shafi'i, Risalah, p. 103, Abu Zahrah, Usul, p. 148.] Naskh is explanatory in the sense that it tells us of the termination of a particular ruling, the manner and the time of its termination, whether the whole of a ruling or only a part of it is terminated, and of course, the new ruling which is to take its place. However, the majority of ulema do not accept the view that naskh is a form of bayan. The fact that naskh terminates and puts an end to a ruling differentiates it from bayan, and when a ruling is terminated, it cannot be explained. There may be instances of conflict between two texts which, after scrutiny, may turn out to be apparent rather than real, and it may be possible to reconcile them and to eliminate the conflict. One of the two texts may be general (`amm) and the other specific (khass), in which case the rules of interpretation and takhsis (specification) must be applied so as to eliminate the conflict as far as possible. If the two texts cannot be so reconciled, then the one which is stronger in respect of authenticity (thubut) is to be preferred. If, for example, there be a conflict between the Qur'an and a solitary Hadith, the latter is weaker and must therefore give way to the Qur'an. The solitary, or Ahad, Hadith may also be abrogated by the Mutawatir, the Mashhur, or another Ahad, which is dearer in meaning or which is supported by a stronger chain of narration (isnad). But if the two texts happen to be equal on all of these points, then Principles of Islamic Jurisprudence ~ Kamali 141 the prohibitory text is to be given priority over the permissive. Furthermore, in all instances of conflict, it is essential to determine the time factor. If this can be determined, then the later in time abrogates the earlier. The chronological sequence between the two rulings can, however, only be established by means of reliable reports, not by rational argumentation or analogical reasoning. Usul, p. 455.] [12. Ghazali, Mustasfa, I, 83; Badran, As a general rule, naskh is not applicable to the `perspicuous' texts of the Qur'an and Hadith, known as muhkamat. A text of this nature is often worded in such a way as to preclude the possibility of repeal. 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, which could not be subjected to ab...
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