Principles of Islamic Jurisprudence by MH kamali

Next there arises the question of chronological order

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Unformatted text preview: origin than the general proposition, the former abrogates the latter and is no longer regarded as takhsis, but as a partial abrogation of one text by another. According to the Hanafis, takhsis can only take place when the 'Amm and the Khass are chronologically parallel to one another; in cases where this order cannot be established between them, they are presumed to be parallel. The difference between abrogation and takhsis is that abrogation consists of a total or partial suspension of a ruling at a later date, whereas takhsis essentially limits the application of the 'Amm ab initio. To the majority of ulema takhsis is a form of explanation (bayan) in all of its varieties, but to the Hanafis it is a form of bayan only when the specifying clause is independent of the general proposition, chronologically parallel to it, and is of the same degree of strength as the 'Amm in respect of being a qat'i or a zanni. But when the specifying clause is of a later origin than the general proposition, the effect which it has on the latter, according to the Hanafis, is one of abrogation rather than bayan. [55. Badran, Usul, p. 376.] The majority view on takhsis thus differs from the Hanafis in that takhsis according to the majority may be by means of both a dependent or an independent locution, and the specifying clause need not be chronologically parallel to the general proposition. This is because in the majority opinion, the specifying clause explains and does not abrogate or invalidate the general proposition. [56. Abu Zahrah, Usul, pp. 128-129.] Principles of Islamic Jurisprudence ~ Kamali 107 Notwithstanding the ulema's disagreement regarding the nature of takhsis, it would appear that takhsis is not a partial invalidation of the 'Amm, but an explanation or qualification thereof. This is the majority view, and seems to be preferable to the Hanafi view which equates takhsis with partial abrogation. Zahrah, Usul, p. 129.] Imam Ghazali discusses the Hanafi position at some length, and refutes it by saying that a mere discrepancy in time does not justify the conclusion that takhsis changes its character into abrogation. Nor is it justified to say that a discrepancy in the strength of the indication (dalil) determines the difference between takhsis and abrogation. [58. Ghazali, Mustasfa, II, 103-105.] The effect of 'Amm is that it remains in force, and action upon it is required, unless there is a specifying clause which would limit its application. In the event where a general provision is partially specified, it still retains its legal authority in respect of the part which remains unspecified. According to the majority of ulema, the 'Amm is speculative as a whole, whether before or after takhsis, and as such it is open to qualification and ta'wil in either case. For the Hanafis, however, the 'Amm is definitive in the first place, but when it is partially specified, it becomes speculative in respect of the part which still remains unspecified; hence it will be treated as zanni and would be susceptible to further specification by another zanni. [59. Khallaf, 'Ilm,...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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